Mary Paterson, Craig Lockwood, Adam Hirsh
Dec 6, 2011
On December 5,
2011, the Court of Appeal for Ontario released its long-awaited decision
concerning the province’s new summary judgment rule (Rule 20). As anticipated, the Court confirmed the expansive breadth
of the motion judge’s jurisdiction under the amended Rules, signaling a marked
departure from the circumscribed judicial role that had developed under the
former Rules. In so doing, the Court made it clear that such jurisdiction was not
unbounded and that the summary judgment procedure will not be appropriate in
all cases. To the contrary, in keeping with the principles that animated the
broader 2010 amendments to Ontario’s civil justice system, the Court confirmed
that the application of new Rule 20 will ultimately be governed by
considerations of “proportionality”.
Genesis of the New Summary Judgment
summary judgment rule is part of a series of recent amendments designed to make
the civil justice system in Ontario more accessible and affordable. It has its
origins in the 2007 Osborne Report, which concluded that the existing summary judgment
rule was not effective because of the jurisprudence that had developed which
severely limited the scope and application of the former Rule 20. In
particular, the case law governing the old rule prohibited the motion judge
from evaluating the credibility of witnesses, weighing the evidence or making
findings of fact.
The Osborne Report found that this prohibition had deterred litigants
from using the summary judgment procedure and had limited its effectiveness.
Accordingly, the Osborne Report recommended that the rule be amended to expressly empower judges to
weigh evidence, draw inferences and evaluate credibility. The Osborne Report
further recommended that the motion judge be permitted to direct a “mini-trial”
in cases where the court needed viva voce
evidence to dispose of the motion, but did not require a full trial to
dispose of the case.
The new Rule
20, which came into force on January 1, 2010, adopts these recommendations. In
particular, the new rule:
the test of “no genuine issue for trial” with the more focused “no genuine
issue requiring a trial” (Rule 20.04(2)(a));
a judge to weigh evidence, evaluate credibility and draw inferences from
evidence (Rule 20.04(2.1)); and
a judge to order that oral evidence be presented for the purpose of weighing
evidence, evaluating credibility and drawing inferences (Rule 20.04(2.2)).1
Divergence in Cases Applying the New
In the months
following the amendments, the court began to develop its approach to summary
judgment under the new Rule 20. Although a consensus emerged that the new rule
broadened the court’s jurisdiction, the cases diverged on the question of
whether it was appropriate for a motion judge to use the new powers to decide
an action on the basis of the evidence presented on a motion for summary
judgment, rather than simply using the new powers to decide whether a trial was
this question and provide some guidance on the scope of the Court’s powers
under the new Rule 20, the Court of Appeal convened a five-judge panel (Winkler
C.J.O., Laskin, Sharpe, Armstrong and Rouleau JJ.A.) to hear five appeals from
decisions under the amended rule. The Court also appointed five amicus curiae to provide submissions on
how the amended rule should be interpreted: the Attorney General of Ontario,
The Advocates’ Society, the Ontario Bar Association, the Ontario Trial Lawyers
Association and The County and District Laws Presidents’ Association.
The “Fresh Approach” to Rule 20
In Combined Air Mechanical Services Inc.,
the Court of Appeal expressly adopted a “fresh approach” to summary judgment.
Accordingly, while the Court acknowledged that a substantial body of
jurisprudence from the Superior Court of Justice had developed since the
introduction of the new Rule 20, it refrained from commenting on prior cases on
the grounds that its decision “marks a new departure and fresh approach” to
the Court’s new approach – described as the “full appreciation test” – requires
the motion judge to conclude that he or she can fully appreciate the evidence
and issues in the case (not just the
motion) based on the motion record, as supplemented by limited oral evidence.
In other words, the motion judge must determine whether this full appreciation
can be obtained from the motion record, as may be supplemented by the
presentation of oral evidence under Rule 20.04(2.2), or whether the attributes
and advantages of the trial process are necessary to effect a full and fair
resolution of the dispute.
When Will the “Full Appreciation
Test” be Met?
made it clear that the new Rule 20 would not eliminate all trials, but rather
only the “unnecessary” ones. Its purpose, consistent with the “touchstone of
proportionality” that guides interpretation of the Rules, is to “provide an
appropriate means for effecting a fair and just resolution of the dispute
before the court.” As a result, certain scenarios are more likely to meet the
full appreciation test, such as:
the case is focused on the documents;
there are limited factual issues in dispute;
there are only a few witnesses testifying (in writing or orally) to only a few
the discovery process is complete or would not be necessary to permit a fair
and just resolution of the dispute;
the claims or defences have no chance of success; and
the case turns on questions of law.
in cases that call for multiple findings of fact based on conflicting evidence
emanating from a number of witnesses and found in a voluminous record, a
summary judgment motion may not provide a fair and just process for resolving
parties agree that summary judgment is an appropriate process to resolve the
dispute, the Court of Appeal made it clear that the full appreciation test
applies and the motion judge retains a discretion to refuse summary judgment
where the test is not met.
If the motion
judge decides that he or she can fully appreciate the evidence and issues in
the case, then the motion judge is free to resolve factual issues and dispose
of the action. Notably, the Court of Appeal confirmed that once the motion
judge decides that summary judgment is the right process to resolve the
dispute, the evidentiary rules that governed summary judgment under the old
rule, such as the requirement that all parties put their “best foot forward”,
remain in place.
What if the Summary Judgment Motion
The Court of
Appeal recognized that there may be cases in which the summary judgment motion
is premature because it was brought before discovery was complete. In such a
case, the Court of Appeal suggests moving to stay or dismiss the motion “where
the most efficient means of developing a record capable of satisfying the full
appreciation test is to proceed through the normal route of discovery.” In view
of this commentary, it will be interesting to see whether litigants choose to
bring such a motion independently in the context of a slimmer paper record, or
whether they fold it into their response on the merits.
What Scope is There for Oral
The new Rule
20 permits a summary judgment motion judge – as distinct from the litigants
themselves – to direct oral evidence in order to assist in determining whether
any of the issues raised in the action require a trial for their fair and just
resolution. The Court of Appeal explains that this power does not
convert a summary judgment motion into a summary trial by virtue of the
the motion judge can direct oral
cannot require oral evidence or appeal on the basis that the failure of the
motion judge to permit oral evidence was an error;
motion judge can restrict the extent of
the evidence to be led, the order in which it is led, and the issues to which
this evidence is to be directed; and
cannot rely on oral evidence to supplement the motion record.
In short, counsel must be prepared to argue the summary judgment motion
based on the paper record. Although the motion judge can order oral evidence if
he or she believes that such testimony will help in weighing evidence,
assessing credibility or drawing inferences, this is not intended to convert
the proceeding into a summary trial (notwithstanding the reference to
“mini-trials” incorporated into the body of the new rule).
Application of the “Fresh Approach”
to the Five Cases Under Appeal
out the general test, the Court of Appeal turned to the specific appeals before
it. In so doing, it held that the standard of review is the “correctness”
standard by virtue of the fact that the determination of whether there is “no
genuine issue requiring a trial” is ultimately a question of law.
application of the test to the five cases under appeal provides a useful
illustration of how the test will operate in practice:
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1. In Combined Air Mechanical Servicesv. Flesch, the motion judge granted summary judgment to the
defendants, dismissing the plaintiff’s claim for damages for alleged breaches
of restrictive covenants in an acquisition agreement.
The Court of Appeal dismissed the plaintiff’s appeal and approved the
motion judge’s decision to hear oral evidence from a limited number of
witnesses on a discrete issue. This evidence provided assisted the motion judge
in weighing the evidence before him, evaluating the credibility of the
deponents and drawing reasonable inferences from the evidence.
| || || || || |
2. In both Mauldin et al. v. Cassels Brock et al. and Bruno Appliance and Furniture v. Cassels Brock et al., the motions
were based on 18 affidavits and 3 weeks’ of cross-examination transcripts but
no oral evidence. The motion judge granted summary judgment against one
defendant in both actions, finding that he had defrauded the plaintiffs. The
motion judge refused summary judgment against the other defendants, who had
been sued in fraud, conspiracy, negligence and breach of contract, concluding
that a trial was necessary to determine liability.
The Court of Appeal noted that both actions bore the hallmarks of the
type of actions in which the full appreciation of the evidence and issues could
only be achieved at trial, including the fact that:
motion record was voluminous;
witnesses gave evidence;
theories of liability were advanced against each of the defendants;
- numerous findings of fact were required to
decide the motions;
determinations lay at the heart of the dispute;
evidence of major witnesses was in dispute on key issues; and
credibility was made more difficult by the near absence of reliable documentary
The Court held that going forward, cases such as Mauldin and Bruno will
require a trial and should not be decided by way of summary judgment.
Nonetheless, given that a decision had already been reached in Mauldin after careful scrutiny of a
lengthy record, the Court held that the defendant’s appeal should be dismissed.
The Court granted the appeal in the Bruno
action, because the motion judge failed to consider one of the elements of
the cause of action for civil fraud.
| || || || || ||3. In 394 Lakeshore Oakville HoldingsInc.
v. Misek, the motion judge reviewed the written evidence, granted summary
judgment and declared that the plaintiff did not have a prescriptive easement
over the defendant’s property. |
The Court of Appeal dismissed the appeal, noting that the documentary
evidence was limited and not contentious, there were a limited number of
relevant witnesses and the governing legal principles were not in dispute. The
Court also rejected the defendant’s argument that certain categories of claims
(for instance, claims for prescriptive easements) should not be decided on a
motion for summary judgment.
| || || || || ||4. Finally, in Parker v. Casalese, a simplified procedure action under Rule 76,
the motion judge reviewed the written evidence and refused to grant summary
judgment against a contractor and a homeowner for allegedly causing damage to a
neighbour’s property. |
The Court of Appeal dismissed the plaintiff’s appeal, finding that the
full appreciation test could not be satisfied with respect to the issues of
causation and damages. The Court also noted that although summary judgment is
available in a simplified procedure action, given the efficiencies already
created by Rule 76, the motion judge will need to apply the full appreciation
test and be satisfied that entertaining the motion is consistent with the
efficiency rationale reflected in the simplified procedures rules. Where there
is competing evidence from multiple witnesses or where oral evidence is clearly
needed to decide certain issues, summary judgment will not be appropriate in a
simplified procedure action.
If you have any questions
about the subject matter of this Osler Update, or you wish to discuss further,
please contact Craig Lockwood, Mary Paterson or Adam Hirsh.
1 Notably, the Court released its Practice Direction for Civil Applications,
Motions and other Mattersin the
Toronto Region contemporaneous with the introduction of the amendments to
the Rules, which mandated a scheduling and monitoring process for all summary
judgment motions to ensure that the anticipated “hybrid hearings” involving
oral evidence or the subsequent “tailored trial of issues” would proceed
2 See the discussion in Mauldin v. Cassels Brock & Blackwell LLP, 2011 ONCA 67
(CanLII), (http://canlii.ca/t/2fd7v), at