On January 23, 2014 the Supreme Court of Canada released its highly anticipated and unanimous decision interpreting the 2010 revisions to Rule 20 of the Rules of Civil Procedure and summary judgment motions. In doing so, the Supreme Court abandoned the “full appreciation test” established by the Ontario Court of Appeal. The Supreme Court held that not enough emphasis was given to the proportionality changes to Rule 1.04, and as such that the appropriate functioning of Rule 20 had been constricted. Changes to the interpretation were necessary to achieve the goals of less expensive, expeditious, just, and proportional determination of legal issues.
The Supreme Court emphasized that “a trial is not the default procedure” and that summary judgment motions provide a “significant alternative model of adjudication”. The core of the judgment is comprised of a test for when summary judgment is appropriate, and a roadmap for judicial application of the refined procedure. This judgment provides lawyers with a much clearer interpretation of these procedures, and when the facts of a case so permit, will be helpful in pursuing client’s causes in a manner more efficient than a full trial.
As per the changes made to Rule 20.04(2)(a) in 2010, a Court shall grant summary judgment if the court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defense”. In interpreting this section, the Supreme Court abandoned the approach taken by the Court of Appeal that established case categories which were amenable to summary judgment, opting instead for a test which should allow the law to develop organically.
The Supreme 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 a motion for summary judgment, and that this will be so when the process:
- Allows the judge to make the necessary findings of fact;
- Allows the judge to apply the law to the facts; and
- Is a proportionate, more expeditious and less expensive means to achieve a just result as compared to a full trial.
The Supreme Court established a roadmap for how the judiciary must approach summary judgment motions. This roadmap provides lawyers with insight into the manner in which judges are mandated to approach such motions, and thus allows a more pointed preparation of materials and argument than was available under the former interpretation.
- A judge must first determine if there is a genuine issue requiring a trial according to Rule 20.04(1), but without using the fact-finding powers under 20.04(2.1) or 20.04(2.2);
- If after step one there appears to be a genuine issue requiring a trial, a judge must then determine if a trial can be avoided by using the fact-finding powers under Rules 20.04(2.1) and 20.04(2.2), unless to do so would be against the interest of justice;
- Although use of the fact-finding powers is discretionary, the motions judge shall grant summary judgment if there is no genuine issue requiring a trial.
Step two of the roadmap above requires that before a judge uses their fact-finding powers that they must ensure that to do so is not against the interest of justice. This assessment requires a comparison of the difference between summary judgment as compared to a full trial in the case at hand with a view to the relative efficiencies, cost, speed, and proportionality of each proceeding, and any implications for the proceeding as a whole.
In one of the first cases to apply this judgment, Hoang v. 909984 Ontario Inc., 2014 ONSC 749, Justice Flynn stated that in that case summary judgment should be granted because there was no genuine issue requiring a trial and “that it is not in the interest of justice to require this court to exercise the powers under Rule 20.04(2.1) only at a trial.” While we are very early in the case law that will spring from the new interpretation of Rule 20, Justice Flynn’s statement serves to emphasize the comparison of the motion to a full trial, and serves as an example of how judges will behave on these motions going forward.
The Supreme Court provided guidance that a motion for directions can be brought under Rule 1.04 or 1.05 prior to a motion for summary judgment so as to enhance efficiency, and that a failure to do so (when appropriate) can have costs consequences under Rule 20.06(a).
The Supreme Court also confirmed that a motion for directions can be used to oppose inappropriate summary judgment motions when the motions would be “lengthy, complex…[or] particularly on the basis that they would not sufficiently advance the litigation, or serve the principles of proportionality, timeliness and affordability.” (at para. 72)
The Supreme Court emphasized that in the event that a summary judgment motion is unsuccessful in whole or in part, that the motions judge should seize themselves of the matter for trial. The motions judge can then avail themselves of their knowledge of the file and utilize Rules 20.05(2)(a) through (p) to craft specific trial management orders.
The Supreme Court’s new interpretation provides both plaintiff and defense lawyers with a more powerful tool to advance their client’s interests in a more proportional and efficient manner. Moving on a summary judgment motion requires careful preparation and the exacting marshalling of evidence.