Boomerang Summary Judgment: Court Of Appeal Provides Guidance On Situations Where Parties Should Be On The Lookout

• Published date: 12 April 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor and Trevor Courtis

Boomerang Summary Judgment: Court of Appeal Provides Guidance on Situations Where Parties Should Be on the Lookout

In Graham v. City of Toronto, 2022 ONCA 149, the Ontario Court of Appeal recently endorsed (again) "boomerang" summary judgment – where the court not only declines to grant summary judgment to the moving party but goes further and grants summary judgment against them, and provided a helpful list of the situations where the moving party will be sufficiently on notice of the risk of boomerang summary judgment.

Going forward, parties and their counsel should be mindful of these situations and the associated risk of summary judgment being granted against them, even where it is not being formally sought by the opposing party. It appears that any reference to the potential risk, however oblique, will be sufficient.

Background: Boomerang Summary Judgment and its Limits

Ever since the Supreme Court of Canada's transformational 2014 decision in Hryniak v. Mauldin, Canadian courts have endorsed the increased use of summary judgment motions as a way to achieve a more timely and efficient disposition of civil litigation than a conventional trial. Summary judgment is attractive in cases where the issues are amenable to being determined on a paper record, particularly those where the court will not have to assess credibility to make the necessary factual findings.

Over the same time period, courts have also demonstrated an increased willingness to grant summary judgment against the party bringing the motion, regardless of whether the opposing party has actually brought a cross-motion seeking that relief. This is colloquially known as "reverse" or "boomerang" summary judgment. For example, where a defendant seeks summary judgment dismissing a civil action, the court may grant judgment to the plaintiff instead.

The jurisdiction of courts to grant boomerang summary judgment in appropriate circumstances has been endorsed by the Supreme Court of Canada ¹ and repeatedly by the Ontario Court of Appeal in recent years.² It is grounded in the court's general jurisdiction to facilitate the just, most expeditious and lease expensive determination of every civil proceeding on its merits.³

The following limits on a court's ability to grant boomerang summary judgment have been recognized to ensure fairness to the moving party against whom it is granted:

1. The issue must be within the scope of the summary judgment motion before the court – For example in Singh v Trump,...