The Court of Appeal for Ontario has provided much-needed clarification on the scope and purpose of Ontario's new summary judgment rules (Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764). The issue was important enough that the Court joined together five very different appeals from summary judgment motions, and the appeals were heard by a rare five-judge civil panel. In the Court's view, summary judgment motions should be limited to cases where (i) the parties agree to use summary judgment; (ii) the claim or defence is without merit or; (iii) where the motion judge can “fully appreciate” all of the evidence needed to dispose of the case without a trial.
Since 1985, Ontario's Rules of Civil Procedure have allowed all parties to move for summary judgment.1 In practice, this means that a motion judge decides whether there is a genuine issue for trial based on a paper record (affidavits, transcripts of out-of-court cross-examinations and written and oral argument) without a trial.
Prior to January 2010, the summary judgment rule and the case law restricted motion judges' powers to assess the quality and cogency of the evidence on a summary judgment motion. In particular, judges could not assess credibility, weigh evidence or drawing inferences of fact. In practice, summary judgment was generally limited to clearly unmeritorious litigation.
In January 2010, the Rules of Civil Procedure were amended, based on recommendations made by the Honourable Coulter Osborne, QC, former Associate Chief Justice of the Court of Appeal for Ontario. He recommended broadening judges' powers on summary judgment motions to make the rule more effective in disposing of cases earlier in the litigation process.
Although the test for summary judgment was similar (the test was changed from “no genuine issue for trial” to “no genuine issue requiring a trial”), judges are now allowed to weigh the evidence, evaluate credibility and draw reasonable inferences from the evidence. The amendments also allowed judges to hear evidence from witnesses in court on specific, narrow issues and removed the costs presumptions that made parties reluctant to use the rule.
The Court of Appeal has interpreted the amendments to mean that summary judgment motions should be brought in three types of cases: (i) the parties agree to use summary judgment; (ii) the claims or defences are without merit; or (iii) the motion judge can “fully appreciate” all of the evidence and issues required to make a dispositive finding without a trial.
The full appreciation test is novel. Because motion judges only review a paper record and do not see witnesses giving oral testimony, it is more difficult to make findings of credibility. As such, the Court of Appeal cautioned motion judges (and parties bringing summary judgment motions) to only use the rule if the judge can fully appreciate the evidence without a trial. In cases where there are many affiants or where the parties agree that oral evidence would be helpful, it is unlikely that a summary judgment motion is appropriate. It is not enough for the motion judge to be knowledgeable about the motion record or understand the evidence. The judge must decide whether the trial process (including hearing and observing witnesses, listening to the trial narrative and experiencing the fact-finding process first-hand) is required to fully appreciate the evidence and issues.
The Court explained how some of the new judicial tools should be used on summary judgment motions.
The Court of Appeal cautioned that oral testimony cannot replace a full trial and its accompanying narrative. It can assist judges in fully appreciating the evidence to determine if a trial is required. For example, oral evidence may be appropriate where: (i) there are a small number of witnesses that can be gathered in a manageable period of time; (ii) oral evidence will have a significant impact on whether summary judgment is granted; or (iii) there is a narrow and discrete issue.
The motion judge may dismiss the summary judgment motion but give directions to facilitate a more expeditious trial. This power salvages the resources that went into the summary judgment motion but should not result in the identical evidence being presented at trial (i.e., affidavits and cross-examination transcripts should not be treated as a substitute for oral testimony).
If a party successfully defends a summary judgment motion, it must demonstrate that the moving party acted unreasonably or in bad faith to obtain substantial indemnity costs. There will likely be litigation over whether a summary judgment motion that does not allow the judge to fully appreciate the evidence will be considered unreasonable for costs purposes.
Summary judgment motions should rarely be brought in simplified rules actions. Judges must consider whether they can satisfy the full appreciation test, in part because parties are prohibited from cross-examining witnesses in simplified rules motions. Summary judgment motions will only be appropriate for simplified rules cases when the case is based on specific documents and with limited contested evidence.
The Court applied this new framework to each of the five cases on appeal. In Combined Air Mechanical v. Flesch and Lakeshore Oakville Holdings Inc. v. Misek, the Court affirmed the motion judges' respective decisions because they each had a full appreciation of the case. In Mauldin v. Hryniak and Bruno Appliance and Furniture v. Hryniak, which involved allegations of fraud, conspiracy, negligence and breach of contract and 28 volumes of evidence and 18 witnesses, the Court held that these actions should have been resolved at a trial. However given the costs and resources expended by the parties, the Court allowed one of the judgments to stand on the basis that the motion judge did fully appreciate the evidence before him. In Parker v. Casalese, a simplified rules case, the Court upheld the Divisional Court's decision not to grant summary judgment on the basis that a simplified rules motion in these circumstances did not allow for a full appreciation of the evidence. The Court of Appeal did provide directions to narrow the issues at trial.
The Court of Appeal's decision brings some clarity to Ontario's summary judgment rule. Litigants in Ontario are justifiably concerned about the costs of litigation and are looking for cost effective means to resolve their disputes. Although the amendments to the summary judgment rule give judges increased powers to determine if a trial is necessary and aid the goal of access to justice, it now appears clear that judges should only give heed to that objective when they have a full appreciation for the factual and legal issues in dispute. Accordingly, summary judgment should only be sought where the issues are narrow and the evidence is not voluminous such that the motion judge can have a full appreciation. This decision is likely not the final word on summary judgment motions: at least one of the parties to the appeals is considering appealing to the Supreme Court of Canada. And, of course, the effectiveness of this decision will only be seen in its application by motion judges.