Summary judgment can be an effective tool to dispose of legal claims and defences without the cost, delay and expense of a formal trial.
Unfortunately, Ontario’s courts have struggled to adopt and retain a coherent summary judgment standard since the current iteration of Rule 20 was adopted in 2010. Subsequently, the courts first adopted the ‘full appreciation test’ from Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764. This was later supplanted by the test set forth in Hryniak v. Mauldin, 2014 SCC 7, which very generally, provides that summary judgment will be available where there is sufficient evidence to justly and fairly adjudicate the dispute.
Under either regime, the onus was on the moving party to show that there is no genuine issue requiring a trial. However, the responding party must likewise present its best case or risk losing. Additionally, the court is entitled to assume that the parties have advanced their best case and that the record contains all of the evidence that the parties will present at trial. Georges v. Nahri, 2016 ONSC 2294. In contrast, the recent case of Sanzone v. Schechter, 2016 ONCA 566 illustrates that these rules do not necessarily apply in the case of self represented litigants.
In Sanzone, a self represented litigant brought suit against her dentists when she experienced problems after dental surgery, commencing an action in 2011. When Sanzone had failed to serve an expert report by Febraury 2015, the dentists’ counsel brought a motion for summary judgment, alleging that in the absence of any expert evidence in support of her claim, no genuine issue was present requiring a trial, such that summary judgment was appropriate. The motions judge noted that as professional negligence had been alleged, expert evidence from a professional practicing in the same field would be required to establish negligence, and that absent such evidence, Sanzone had no chance of success. On that basis, the motions judge granted summary judgment in favour of the defendant dentists.
Sanzone appealed, and was successful in having the Court of Appeal set aside that decision. In so doing, the Court of Appeal noted that “[f]airness requires a judge to accommodate a self-represented party’s unfamiliarity with the litigation process to enable her to present her case to the best of her ability.” Further, the Court of Appeal noted that the motions judge erred in granting summary judgment where the defendant dentists had not filed any evidence dealing with the merits of their defences. In the circumstances, the Court of Appeal held that the appropriate course of action for the motions judge was to address all remaining steps in the proceeding through single-judge case management.
The Sanzone decision could have significant implications in those medical negligence actions having moderate value. By requiring defendants to deliver expert reports before moving for summary judgment, including in instances where plaintiffs have failed to fully articulate their claim (such as in Sanzone), it is possible that the Canadian Medical Protective Association could be coaxed into settling more claims at the lower end of the spectrum.
From a procedural standpoint, the impact of Sanzone on the summary judgment process is unclear. While the Courts had treated the evidentiary record on summary judgment motions as complete, the findings in Sanzone call that into question, at least as to self-represented litigants. Likewise, it is unclear how the courts will square the Sanzone decision with the existing case law requiring a responding party to put its best foot forward or risk losing, although I suspect all parties will see much greater use of single judge case management surrounding the summary judgment process going forward. Whether this decision makes the Ontario court system more or less efficient remains to be seen.