Judgment Released: January 23, 2014 Link to Judgment
The Supreme Court has released its decision interpreting Ontario’s new summary judgment rule. The Court has expanded the scope of Rule 20 motions, holding that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.” Summary judgment motions are now seen as a “significant alternative model of adjudication.”
The unanimous decision dismissing the appeal abandoned the “full appreciation test” endorsed by the Court of Appeal in Combined Air Mechanical Services Inc v Flesch (summarized on this blog here) as not according with the underlying purpose of the new RuIes, which is promoting access to justice and proportionality of proceedings.
The new approach on a Rule 20 motion for summary judgment
The Supreme Court established a “roadmap” for determining motions for summary judgment:
1. Without employing its fact-finding powers (Rule 20.04(2.1)) or exercising its discretion to hear oral evidence (Rule 20.04(2.2)), a judge must first determine if there is a genuine issue requiring a trial. No genuine issue exists if the summary judgment process provides the evidence necessary to fairly and justly determine the dispute and if summary judgment is a timely, affordable, and proportionate procedure.
2. If there appears to be a genuine issue requiring a trial, a judge must determine if the need for a trial can be avoided by hearing oral evidence or using its fact-finding powers. These powers are presumptively available to be exercised unless their use is opposite to the interests of justice; that is, the powers may be used “if they will lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.”
3. Although the decision to use the powers described by Rules 20.04(2.1) and 20.04(2.2) is discretionary and attracts deference on appeal, summary judgment is mandatory where there is no genuine issue requiring a trial.
The Court held that there will be no genuine issue requiring a trial when “the judge is able to reach a fair and just determination on the merits on the motion for summary judgment”. A fair and just determination is only possible when the process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.” Significantly, fairness is no longer judged through the lens of a full trial procedure (although comparison of the cost and speed of both procedures and comparison of the evidence that will likely be available at trial and the evidence heard on the motion is invited). Instead, on a Rule 20 motion, a judge must only determine whether or not she “is confident that she can fairly resolve the dispute.”
A motion judge should hear oral evidence under Rule 20.04(2.2) when:
1. It can be obtained from a small number of witnesses and gathered in a manageable period of time;
2. The issue addressed by the oral evidence is likely to have a significant impact on the dispute; and
3. The issue raised by the oral evidence is narrow and discrete.
However, the Supreme Court warned that there are no absolutes as to the hearing of oral evidence; instead, the power to hear oral evidence “should be employed when it allows the judge to reach a fair and just adjudication of the merits and if it is the proportionate course of action.” Counsel wishing to lead oral evidence must demonstrate “why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences…” and may be required to provide a “will say” or some other description of the proposed evidence before it is heard by the judge.
To help guard against Rule 20 motions becoming costly additions to an already expensive system of adjudication, the Supreme Court endorsed a number of mechanisms, including costs awards and the use of trial management powers.
Overall, the Court’s decision was guided by the view that summary judgment motions provide an opportunity to provide fair, just and proportionate adjudication of disputes:
A culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.