Motion For Summary Judgment: Can You Ever Be A Winner?

Prior to the significant changes to Ontario's Rules of Civil Procedure in 2010, winning a motion for summary judgment was considered to be somewhat of a miraculous achievement. The former Rule 20, which governed motions for summary judgment, served to severely restrict a judge's powers, and judgment would be granted only if the moving party could demonstrate that there was no genuine issue for trial. And almost anything could be characterized as a genuine issue for trial. Furthermore, cost consequences for the losing party were so Draconian that most litigants would be deterred from even trying.

The changes to the Rules, generally, in 2010 signalled a legal cultural shift, the goal being to increase access to justice. In terms of summary judgment, in particular, the intent was to elevate the likelihood of success. The legal test was modified such that judgment would be granted if there is no genuine issue requiring trial. In other words, unless a trial is absolutely necessary, the dispute can be resolved summarily.

To achieve the goal of greater access to justice, judges have been afforded sweeping new powers: they are now permitted to hear and weigh oral evidence, make determinations as to credibility, and draw inferences from the evidence unless the interest of justice requires that a hearing be conducted on a full evidentiary basis (i.e. a trial). Furthermore, cost consequences for unsuccessful litigants have been slackened: whereas the old Rule required that that the losing party pay the successful party's costs, on a full indemnity basis, the Court now has discretion to award costs, depending on the circumstances.

The governing principle is proportionality: courts are now required to apply the Rules with a view to the importance and complexity of the matter, and a consideration of the amount in dispute.

In Combined Air Mechanical Services Inc. v. Flesch1, the Ontario Court of Appeal had its first opportunity to interpret and apply the new Rule. Unfortunately, its interpretation was much more restrictive than legal practitioners in Ontario had anticipated or hoped. In fact, some perceived the decision to be contrary to the legislative intent contemplated by the new Rule.

In 2014, the Supreme Court of Canada seized the opportunity to address the problem, and to clarify the application of the test for summary judgment. In Hryniak v. Mauldin2, the Supreme Court recognized that the expense and delay of trials had the potential to prevent a...