Ode to the Trial

This was how David Sterns, one of the panel members at an OBA civil litigation session last week, described the Ontario Court of Appeal’s 5 December judgment interpreting the new summary judgment rule. (See Simon Chester’s post last week for a good description of the amendment and the decision.)

Despite all the energy and resources being devoted in our modern system of civil justice to mediation, alternative dispute resolution and most recently judicial dispute resolution, in its 111 page judgment in Combined Air and four other cases, the Court of Appeal reinforces the primordial elements of the trial in our system of civil justice. As Peter Griffin, another panel member put it, the court is saying that in this province “We are in the trial business.”

The central message of the Court of Appeal’s decision is that the summary judgment motions court cannot dispense with a trial unless it is “in the interests of justice” to do so:
“…the aim of the civil justice system is to provide a just result in disputed matters through a fair process.”

The Court emphasized (para 59) that the amended rule is not to be interpreted as creating a summary trial – a summary judgment motion does not constitute a trial. The Osborne report on civil justice reform recommended adopting a summary trial mechanism but it was not adopted.

The purpose of the new power to call oral evidence on a summary judgment motion is to assist the motions judge in making the determination as to whether any of the issues raised in the action require a trial for their fair resolution. The power must not be understood as permitting summary or mini trials. The power,

amounts to no more than another tool to better enable the motion judge to determine whether it is safe to proceed with summary disposition rather than requiring a trial.(Para 60)

While there is a role for expanded summary judgment procedure,

…a trial is essential in certain circumstances if the interest of justice is to be served. (para 45)

The Court went to great pains to describe the importance of the trial process in attaining justice. A trial gives the judge “total familiarity with the evidence”. The judge participates in the dynamic, sees the witnesses, asks questions when in doubt, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses, not via affidavits drawn by lawyers. The judge’s involvement gives greater assurance of fairness. A trial allows the parties to present their evidence in the manner their advocates choose. This may have an impact on the outcome. (See paras 46 – 49).

The Court of Appeal has now made it perfectly clear that where the interests of justice require a trial, in Ontario parties cannot be deprived of one by summary judgment.

Two things follow.

First , where the interests of justice require a trial, and a party has elected to proceed to trial after unsuccessful mediation, it is contrary to the interests of justice for the party to be subjected to further compulsory, emotionally draining, expensive mediations and pretrials.

Second, unless the parties agree, it is contrary to the interests of justice that they should be made to speak, or have their witnesses subjected to questioning at pre-trials or mediations. This annihilates the parties’ control of the conduct of their trial.