Supreme Court to Weigh in on Ontario’s Summary Judgment Rule

On January 1, 2010, a number of substantial amendments were made to Ontario’s Rules of Civil Procedure. Among the most notable changes were those made to Rule 20, Ontario’s Rule dealing with summary judgment motions.

Prior to the Rule change, judges hearing summary judgment motions were not allowed to assess credibility, weigh evidence, or draw inferences of fact. The result was that summary judgment motions were generally only brought in very straight forward cases where, at least in the opinion of one party, there was no genuine issue for trial.

Starting on January 1, 2010, motion judges were given tools to assess credibility, weigh evidence and draw inferences of fact. The idea behind the Rule change was to make summary judgment accessible in more cases and thus open up the cheaper, and more expedient resolution to more litigants. This resulted in an explosion of summary judgment motions and a wealth of Superior Court jurisprudence which, due to its conflicting nature, did little to assist in determining how the amended Rule was supposed to operate.

The Ontario Court of Appeal decided to help. In June, 2011, the CA heard five summary judgment appeals together. In addition to counsel for the parties, the CA invited the Attorney General of Ontario, The Advocates’ Society, the Ontario Bar Association, the Ontario Trial Lawyers Association and The County and District Law Presidents’ Association to participate as amicus curiae (“friend of the court”). The amicus were asked to address the meaning and scope of the amended Rule 20, while refraining from taking any position on the merits or facts of any of the five cases under appeal. The resulting decision(s) (known to most as “Combined Air”) provided, arguably, clarity to motion judges going forward and set out which types of cases are and are not suitable for summary judgment.

So where are we now? Have the Rule changes and the Combined Air decision resulted in quicker, less costly justice?

The summary judgment juggernaut chugged along. Since the Combined Air decision was released in December of 2011, it has been cited in at least 150 reported decisions.

In Toronto, the practice direction requires parties to attend summary judgment scheduling court in order to obtain a motion date. As of a few weeks ago summary judgment motions over 2 hours in duration were being booked for April and May of 2013. Arguably, aggressive counsel could obtain a trial date quicker than they could obtain a summary judgment motion date.

What about the costs? I was recently involved in a full day summary judgment motion. Numerous affidavits were prepared and there were a number of cross-examinations. One side tendered an expert report as part of the materials. Needless to say, the record was voluminous and both sides put in a lot of preparation for the motion. The collective cost to the parties may very well be over $100,000.

Last month, two of the five cases that comprise the Combined Air decision were granted leave to appeal by McLachlin, Rothstein and Moldaver JJ. of the Supreme Court. It is not clear at this time how the Supreme Court’s decision in these two cases will impact the use of summary judgment motions in the province. However, until then we can be pretty sure that the summary judgment juggernaut will continue to chug along.


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