What is Summary Judgement?

In Ontario, summary judgement is a procedural tool that is available in certain cases to obtain judgment without the need for a formal trial.

It is more likely applicable in certain situations (i.e. determining the rights of parties in a given situation) than others (such as determining what the situation itself was, i.e. where the plaintiff and defendant offer contradictory versions of the same event).

Summary judgement may be sought by either party, and may properly be granted where ‘there is no genuine issue requiring a trial with respect to a claim or defence’. Since the Rules of Court were amended in 2010, the Court has the power on summary judgment to weigh the evidence, evaluate the credibility of witnesses, and draw reasonable inferences from the evidence.

What is the Summary Judgment Process?

The procedural steps involved in bringing a summary judgment motion vary by courthouse. However, the usual steps in the process, which generally takes several months to conclude, typically include:

  1. If necessary, appearance at scheduling court or submission of a motion requisition form to commence the process (procedure varies by courthouses).
  2. Moving party’s summary judgment motion record served/filed (i.e. by January 31).
  3. Responding summary judgment motion record served/filed (i.e. by February 15).
  4. Moving party’s reply, if any (i.e. by February 28).
  5. Cross-examinations on affidavits (i.e. by April 1).
  6. Factum and Book of Authorities by the moving party (i.e. by April 15).
  7. Factum and Book of Authorities by the responding party (i.e. by May 1).
  8. If necessary, Certificate of Perfection and/or motion confirmation form (i.e. after May 1, but note that for this step, procedure again varies by courthouse).
  9. Hearing of the motion, where the parties appear before a Judge and argue the motion on the merits.

In preparing the motion record and factum, your lawyer will seek to present the facts in the most favourable light, while anticipating adverse facts likely to be raised by the other side. They will then outline how the law applies to those facts, and why that means you are entitled to relief.

What is the Legal Test for Summary Judgment?

In Hryniak v. Mauldin, 2014 SCC 7 (CanLII), the Supreme Court of Canada established a road map outlining how a motions judge should approach a motion for summary judgment[1].  The Court must first determine whether there is a genuine issue requiring a trial based only upon the evidence filed with the Court and without using the new factfinding powers set out in the 2010 amendments.  Summary judgment will thus be available if there is sufficient evidence to justly and fairly adjudicate the dispute, with the motion being an affordable, timely and proportionate procedure.

If the Court finds the presence of a genuine issue requiring a trial, the motions judge must then determine if the need for a trial can be avoided by using the new, enhanced powers under Rules 20.04(2.1) and (2.2).

It is important to remember that the applicable evidentiary principles developed under the previous incarnation of Rule 20.04 continue to apply.  The motions judge must still take a “hard look” at the evidence to determine whether it raises a genuine issue requiring a trial, and as a result each party must still put its “best foot forward” and submit cogent and compelling evidence to support or oppose the relief sought.  A moving party has both a legal and evidentiary onus to satisfy the Court that there is no genuine issue requiring a trial.  It is the moving party’s obligation to present a record that can enable the Court to avail itself of the enhanced powers under Rule 20.04 if the record warrants the exercise of such discretion.        

What evidence is considered on a Summary Judgment Motion

On general motions, evidence must be filed via Affidavit, and once a party cross-examines the other party, that party is restricted from filing additional evidence. However, some Judges treat summary judgment hearings as more akin to trials, meaning that evidence may come in via initial Affidavit, along with from a party’s own cross-examination transcript, along with undertaking responses thereto.

What are the Potential Outcomes of a Summary Judgment Hearing?

After hearing a motion for summary judgment, the Judge may:

  1. Rule in favour of the plaintiff and grant summary judgment in their favour;
  2. Rule in favour of the defendant, and grant summary judgment in their favour;
  3. Rule that a summary trial be held on a limited number of issues; or
  4. Rule that neither party is entitled to summary judgment, and that the matter must be tried;
  5. Order the party that lost the motion to pay costs.

What are the Advantages of Summary Judgment?

Summary Judgment may offer a number of advantages, especially to well to do clients. Initially, it may present them with a ‘preview’ of the other side’s witnesses, that would not otherwise be available. It may also expedite and resolve cases and avoid unnecessary trials or simplify matters at trial. As such, in certain circumstances, it can result in reduced legal costs.

What is a Partial Summary Judgement?

Partial summary judgements in Canada can be applied to certain issues or claims within a case. For example, the court may grant partial summary judgement on a commercial case of breach of contract but still require a trial to determine the amount of damages. However, recent cases indicate that such motions may be disfavoured.

How Do You File for a Summary Judgement in Ontario?

Your lawyer will prepare a motion for summary judgement and file the motion with the appropriate court in Ontario.

Can you Appeal a Summary Judgement in Ontario?

Yes, in Ontario you can appeal a summary judgement if the judge grants the summary judgement and issues a final order to end the litigation. If the judge denies the motion for summary judgement, any such appeal would be ‘interlocutory’ and more challenging, meaning that in most cases, the action would continue towards trial.

Contact Michael Lesage, Ontario Business Lawyer

As an experienced business lawyer in Toronto and Hamilton, ON Michael Lesage has experience with all stages of the summary judgment process, having gone through it numerous times.

If you need a lawyer to assist with the summary judgment process in Ontario, call 647-495-8995 to discuss your case or complete the Case Evaluation online.

[1]Penretail v 2380462 Ontario Inc., et al, 2016 ONSC 600 (CanLII), at paras 7-11.
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