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 comprehensive record before it. If it considers that evidentiary record to be sufficient, the Court will make whatever dispositive findings it sees fit on the issues raised, including summary judgment in favour of the respondent. Notably, the Court can and will do so even in the absence of a cross-motion seeking that specific relief.

Superior Court judges have not been hesitant to grant boomerang summary judgment in recent years.4 In Drummond v. The Cadillac Fairview Corp. Ltd.5, the defendant brought a summary judgment motion to dismiss the plaintiff's occupier's liability claim. Justice Perell granted summary judgment to the plaintiff on liability, even though he had argued only that there were genuine issues for trial that were not amenable to summary judgment at all.6

This power is not untrammeled. Appellate courts have not shied away from overturning trial decisions that grant summary judgment in favour of a responding party.

However, those appeals have generally been allowed not because "boomerang" judgments are themselves inherently problematic, but because trial judges have not properly applied the framework of Rule 20 and Hyrniak, or otherwise deprived the unsuccessful party of procedural fairness, in arriving at those judgments.7

In Fontanelle v. Canada (Attorney General)8, the motion judge granted...