Beware the Boomerang Summary Judgment

We’ve all heard about the civil justice system being crisis, and we’ve heard it for decades.

The so-called culture of complacency in criminal proceedings, and corresponding Charter protections in those cases, invariably means a prioritization of judicial resources in those cases.

Even prior to that time, the Court has attempted to foster a cultural shift in civil proceedings through the use of summary judgment motions.

The result has been that instead of threatening to take the other side to trial, parties threaten to take a matter to summary judgment.

But you should always be careful what you threaten. One unanticipated consequence of a summary judgment motion is that the motion may not go in your favour. The presiding judge may even rule summarily against the moving party, also known as a boomerang or reverse summary judgment.

In Drummond v. Cadillac Fairview Corporation Limited, the Court of Appeal for Ontario emphasized that summary judgment motions are intended for more than just efficient use of court resources, and should achieve fair and just results.

If a responding party has not filed a notice of cross-motion also seeking a summary judgment against the moving party, the court should providing the moving party some notice that the motion judge intends to grant judgement against them.

A failure to do so may result in unfairness.

The Court of Appeal also looked at these circumstances in Meridian Credit Union Limited v. Baig, where the responding party had not brought a cross-motion, and found that the judge had the ability to do so. Leave to the Supreme Court of Canada was refused.

This notice could be through triage court, at the start of a hearing, during a hearing with the opportunity to respond, or during the preparation of reasons. In each of these cases it allows the parties to prepare submissions on this point.

The Court of Appeal for Ontario recently looked at a new boomerang summary judgment in Graham v. Toronto (City), where the moving party claimed that the motion judge acted in a procedurally unfair manner.

The judge put counsel on notice of the possible boomerang summary judgment by email, citing the appropriate authorities while the decision was under reserve.

The court noted that the parties were represented, and the communication as with counsel, not self-represented parties. There was an opportunity to make submissions on this point, which they declined to do, and they were therefore aware of the litigation risk.

For all the popularity of summary judgments these days, and its usefulness in resolving matters in a timely manner, parties should be aware that such measures may come right back at them unexpectedly.