Beware The Boomerang: Summary Judgment For Responding Parties

The Supreme Court of Canada's seminal 2014 decision, Hryniak v. Mauldin ("Hryniak")1, promised a "culture shift" that promoted the use of summary judgment motions as a means to achieve more timely and affordable access to justice to parties in the civil litigation system.

The resulting wave of summary judgment motions has given rise to judicial concern about partial summary judgment and its impact on the goals of efficiency and proportionality.2 Courts are increasingly playing a gatekeeper role to discourage such motions from proceeding.

Litigants eager to seek an early and favourable of their actions disposition through the summary judgment mechanism should also be aware of another concern: "boomerang" summary judgment, where the moving party's motion instead results in disposition in the responding party's favour.

The practice has been explicitly approved by the Court of Appeal on multiple occasions3, as being entirely consistent with the objectives of Rule 20 of the Ontario Rules of Civil Procedure, and those promoted in Hryniak.

When a summary judgment motion is heard, the Court is entitled to assume that the parties have put a...