The Evidence Needed For A Successful Summary Judgment Application

Summary Judgment can be an effective tool for obtaining justice faster and less expensively than through a trial. Most jurisdictions have, within the last decade, changed their rules in order to encourage more types of cases to proceed for determination in this fashion. In a summary judgment application, the parties can avoid lengthy oral testimony in court and instead submit their evidence to the court in writing through sworn affidavits, attaching all of the relevant documents. The court simply reads the record provided, considers the legal submissions made by lawyers for both sides, and makes a decision.

This procedure is especially appropriate when the case is document-driven and the court only has to interpret what the documents say and give them legal effect. Summary judgment becomes less appropriate in cases where there is inadequate documentary support and key issues must be determined based solely on the eye-witness recollections and testimony of individuals. In such cases, the ability of judges to observe witnesses as they testify and answer questions in cross-examination becomes crucial in fulfilling their fact-finding role and making just determinations.

The majority of cases, however, do not fall neatly into one or the other of these two categories. There may, for example, be substantial agreement on the facts between the parties for most of the issues; but one thorny issue may be highly important and rest on the credibility of witnesses, thus upsetting the whole applecart and throwing the possibility of summary judgment into question. The rules of court have tried to address this situation by giving judges enhanced fact-finding powers and the discretion to order a mini-trial of that one issue so that summary judgment can still be granted. In Saskatchewan, for example, as in most other jurisdictions, judges can: (i) weigh the evidence, (ii) evaluate the credibility of the deponent, and (iii) draw any reasonable inference from the evidence. Furthermore, "a judge may order that oral evidence be presented by one or more parties, with or without time limits on its presentation."1

These rules make it possible for application judges to resolve limited factual disputes on a summary judgment application when the issues in dispute are, overall, appropriate for summary judgment. It is also open in some cases for application judges to grant partial summary judgment on some of the issues and send the other issues to trial, when the issues...