How “Summary” Is Summary Judgment?

Taking a case to trial is a long and expensive journey. Even the most assertive plaintiffs and their counsel may struggle to move a lawsuit forward quickly due to unresponsive defendants, scheduling difficulties and limited court availability.

For this reason, our Rules of Civil Procedure provide for the option of a summary judgment motion, which allows the moving party to proceed “directly” to a judge and make a pitch that this particular case can be decided by a motion judge and does not require a full trial. Cases most suited for summary judgment are those which have little or no contested or complicated facts and those in which the documentary evidence will tell nearly the entire story.

The benefit of the summary judgment motion is to obtain a result faster, and to avoid the time and expense of all of the procedural steps that are involved in a typical lawsuit. In previous posts I have discussed the fact that litigants in some jurisdictions can actually obtain trial dates sooner than they can obtain summary judgment motion dates. This is due primarily to lack (or improper allocation) of judicial resources.

I put the word “directly” in quotations above because a recent case has reaffirmed that a party who moves for summary judgment is not necessarily relieved of their obligations to go through the documentary and oral discovery process. The rationale is that a party responding to a motion for summary judgment is entitled to put forward all possible relevant evidence to support their position and that, in some cases, all of the relevant evidence is not available to the responding party until after documentary and oral discovery.

I am not going to comment on whether or not I believe that the discovery process should be permitted in all cases to run its course when a motion for summary judgment is pending. I simply wish to point out the practical predicament that this can place on a moving party.

In Toronto, summary judgment motions for 2 hours or longer are currently being booked over a year away (yes, a year). If the responding party wishes to put the moving party through the discovery process, the moving party is placed in a position where by the time the motion date finally rolls around, they will have gone through most of the expense that they otherwise would have gone through if they proceeded in the normal course (to trial). Additionally, by the time the motion date arrives, enough time has probably lapsed whereby the moving party could essentially have the lawsuit ready for trial.

Is “summary judgment” really that summary when you have to participate in the normal discovery process and when you can get a trial date faster than a motion date?

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