Court of Appeal for Ontario Establishes Framework for the Application of New Summary Judgment Rules

Patrick J. Cotter and Nathan Fan
Published December 9th, 2011

The amended provisions of Rule 20 of the Rules of Civil Procedure allow a motion judge to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence, to dispose of cases on the merits where a trial is not required in the “interest of justice”.   In Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, a five Judge panel of the Court of Appeal for Ontario provided the framework for the application of these new provisions. 

In addressing the issue of whether a trial is not required in the “interest of justice”, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial? The Court was careful to distinguish between “full appreciation” and simply being familiar with the full content of the motion record. Full appreciation involves the ability to accurately weigh and draw inferences from the evidence without the benefit of the trial narrative.

While the new provisions of Rule 20 also give the motion judge the power to direct that oral evidence be presented on the motion, the Court emphasized that this power should not be used to have a summary or hybrid trial.  It is still a motion, with the motion judge, not counsel, maintaining control over the introduction and use of any oral evidence.  The power to direct the calling of oral evidence is a tool available to the motion judge to decide whether the case can be safely resolved by way of summary judgment.  It is not a tool for the parties to supplement their motion records.

The Court noted that the requirement that the responding party put its “best foot forward” is subject to an important caveat – where a summary judgment motion is brought early in the litigation process, it will not be in the interests of justice for the motion judge to exercise the power to weigh evidence in cases where the nature and complexity of issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion.  Forcing a party to respond by building a record through affidavit evidence and cross-examinations will only anticipate and replicate the result of the more orderly and efficient discovery process and may be less complete than what the party could present at trial.  In such a case, the responding party may move to stay or dismiss the motion where the most efficient means of developing a complete record is to proceed through the normal discovery process.

Where the motion is dismissed, the trial management provisions under Rule 20.05 are not to be applied so that the trial resembles a reconfiguration of the dismissed motion. The evidence filed for the motion, should not be treated as a substitute for the viva voce evidence of witnesses before the trial judge.