In adopting the full appreciation test, the court said each side must put its best foot forward with respect to the existence (or non-existence) of material issues to be tried. A party is not entitled to sit down and rely on the possibility more favourable facts may develop at trial. Further, it would not be in the interests of justice to exercise Rule 20 powers in cases where the nature and complexity of the issues demand the normal process of productions of documents and oral discovery be completed before a party is required to respond to a summary judgment motion.
In appropriate cases, the court went on to state that the motion judge is empowered to receive oral evidence on discreet issues; this is to assist in making the determination whether any of the issues raised in the action require a trial for their fair and just resolution. It is not intended to permit the parties to supplement the motion record.
The parties cannot anticipate the motion judge directing the calling of oral evidence on the motion. Allowing oral evidence is not an enabling provision entitling a party to enhance the record it has placed before the court. It may be that an oral evidentiary hearing would need to be held after the hearing of the main motion. The oral evidence may be presented by one or more parties with or without time limits on its presentation. Further, the court stated an order for oral evidence will generally be appropriate where the motion judge concludes the exercise of the powers conferred by Rule 20 will be facilitated by hearing the oral evidence of a limited number of witnesses on one or more specific, discrete, and likely determinative issues.
To go to trial or not…
In determining whether there is a genuine issue requiring a trial, the court must consider the evidence submitted by the parties, and the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- weighing the evidence;
- evaluating a deponent’s credibility; and
- drawing any reasonable inference from the evidence.
While not wishing to be taken as establishing an exhaustive list of when a judge may choose to make a summary judgment order, the court indicated it would be appropriate when:
- oral evidence can be obtained from a small number of witnesses and gathered in a manageable period;
- any issue to be dealt with by presenting oral evidence is likely to have a significant impact on whether the summary judgment motion is granted; and
- any issue is narrow and discrete enough to be separately decided without being enmeshed with other issues on the motion.
The court cautioned litigants they must not look to Rule 20 for bringing a motion for summary judgment as a substitute for effective case management of the trial of an action. The court noted the newly introduced Rule 50 permits parties to obtain orders and directions that assist in ensuring a trial proceeds efficiently.
The court noted the onus is now on the party seeking substantial indemnity costs to convince the court the other side acted unreasonably or in bad faith. Before the amendment, substantial indemnity costs were usually awarded to the responding party when the motion for summary judgment was dismissed. This removes a disincentive to litigants from using the summary judgment procure by eliminating the presumption they will face substantial indemnity cost for bringing an unsuccessful motion for summary judgment.
Where the matter is more of a matter of legal principle toward errors of law, the standard of review is correctness. When legal principles and facts are inextricably, significant deference must be afforded. Any factual determination by the motion judge in deciding the motion would attract review on the deferential standard of palpable and overriding error.
The court held it is not necessary for a motion judge to try to categorize the type of case in question. A statement of claim may include a cause of action which the motion judge finds has no chance of success, but the same claim may exert another cause of action that the motion judge is satisfied. This raises issues that can safely be decided using the full appreciation test.
As of this writing, there are four different categories of summary judgment motions:
- those contemplating summary judgment motions;
- those with motions pending;
- those with appeals to the divisional court pending; and
- those with appeals to the Court of Appeal pending.
The question is, will the judgment of the Court of Appeal bring more motions or reduce their numbers, and will these motions aid in decreasing time and expense in litigation in the interest of justice? In other words, will the three pillars of justice—time, expense, and quality—be enhanced? At the time of this writing, the issue is on its way to the Supreme Court of Canada. Perhaps another interim report is in order, another two years from now…
David I. Bristow, QC, LSM, C.Arb., is a member of Team Resolution, a Toronto-based alternative dispute resolution group. He is a former counsel to a national Canadian law firm, where he headed the construction law group, and is a co-author of Construction Builders’ and Mechanics’ Liens in Canada. Bristow was the founding chair of the Ontario Bar Association (OBA) Construction Law Section and a past chair of the Canadian Bar Association (CBA) Construction Law Section. In 2002, he received the Law Society of Upper Canada Medal, the Golden Jubilee Medal of Queen Elizabeth II, and the Giffin Award for outstanding service to the construction industry. Bristow can be contacted via e-mail at email@example.com.