March 9, 2012

Resolving a dispute? Consider summary judgment

When the Rules of Civil Procedure were amended effective January 1, 2010, the intent was to make the litigation system more accessible and affordable for Ontarians. One mechanism for doing so was to amend rule 20 (summary judgment) to make summary judgment motions a more appealing forum to resolve disputes, rather than incurring the time and expense of a full trial.

Prior to the 2010 amendments, a judge hearing a summary judgment motion was precluded from weighing evidence, assessing credibility, or drawing inferences of fact and could only make a decision based on the written record without any witnesses giving testimony. Given these restrictions placed on the motion judge, summary judgment decisions were often difficult to obtain and a full trial was the only forum to obtain a decision.

Under the 2010 amendments, judges were granted greater tools to determine a summary judgment motion which they did not have under the former rule. The Rules of Civil Procedure now explicitly authorize a motion judge to weigh evidence, assess credibility, or draw inferences of fact unless the motion judge is of the view that it is in the interest of justice for such powers to be exercised only at a trial. Further, a motion judge is allowed to order the presentation of oral evidence, with or without time limits, for the purpose of exercising any of their new powers.

These amendments created some uncertainty throughout the legal community as to when it was appropriate to use these enhanced powers to decide an action on the basis of the evidence presented on the motion. Given this uncertainty and the conflicting decisions that were emanating from the amended rule, the Court of Appeal recently released a decision to provide guidance to the legal profession of when it is appropriate for a motion judge to use the new powers to determine a matter by way of summary judgment.

In the decision of Combined Air Mechanical Services Inc. v. Flesch, the Court identified three types of cases that were, generally speaking, amenable to determination on a summary judgment motion. The first type of case is where the parties agree that it is appropriate to determine an action by way of summary judgment, subject to the court being satisfied that the matter can be decided on the evidence provided. The second type of case is where claims or defences are shown to be without merit. Both of these types of cases were suitable for summary judgment prior to the 2010 amendments, however, without the ability of the motion judge to use the enhanced powers described above. A third type of case, which is a result of the 2010 amendments, permits matters to be resolved by summary judgment where the motion judge is satisfied that the issues can be fairly and justly resolved by exercising the new powers and where the trial process is not required in the “interest of justice”.

With respect to the second and third types of cases noted above, the court held that before using the powers to weigh evidence, evaluate credibility, and draw reasonable inferences, a 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 a trial? This “full appreciation test” was created to provide a “useful benchmark for deciding whether or not a trial is required in the interest of justice.” The court held that unless a full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record, the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment and the matter should proceed to trial.

In creating the “full appreciation test”, the court paid homage to the trial process and noted that the purpose of the new rule is to eliminate unnecessary trials, not to eliminate all trials. However, given the new powers and the guidance provided by the Court of Appeal, summary judgment motions now present a quicker and more cost effective method to resolve a dispute, so long as the motion judge can obtain a full appreciation of the evidence and issues that is required to make dispositive findings.