Judgment Released: December 5, 2011   Link to Judgment

The Court of Appeal has now released its omnibus decision on the new summary-judgment rule.

Three types of cases are amenable to summary judgment:

(1) cases where the parties agree to summary judgment;

(2) cases where the claims or defences are without merit; and

(3) cases where the interests of justice do not “require” that the issues be resolved at a trial.

The third category is a result of the new Rule 20 and its change in the text of the rule from “genuine issue for trial” to “genuine issue requiring a trial”. The Court introduced the “full appreciation test”, which asks whether  “the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”  The “full appreciation test” will be used to determine whether, in the interests of justice, the issues raised in an action require the unique forensic machinery of a trial, or whether instead, the issues can be appropriately resolved with summary judgment, using the motion judge’s new expanded powers under rule 20.04(2.1).

The Court held that in “deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record – as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment.”

The Court also observed that “it is not necessary for a motion judge to try to categorize the type of case in question. In particular, the latter two classes of cases we described are not to be viewed as discrete compartments. For example, a statement of claim may include a cause of action that the motion judge finds has no chance of success with or without using the powers in rule 20.04(2.1). And the same claim may assert another cause of action that the motion judge is satisfied raises issues that can safely be decided using the rule 20.04(2.1) powers because the full appreciation test is met. The important element of the analysis under the amended Rule 20 is that, before using the powers in rule 20.04(2.1) to weigh evidence, evaluate credibility, and draw reasonable inferences, the motion judge must apply the full appreciation test in order to be satisfied that the interest of justice does not require that these powers be exercised only at a trial.“

Judgment Released:  June 8, 2011  Link to Judgment

On an appeal to the Divisional Court from an order of a Master on a motion for summary judgment, where the Master dismissed the plaintiffs’ claim, the plaintiffs/appellants argued that the Master exceeded his jurisdiction under Rule 20.04 as the motion required a decision on a point of law respecting causation. The Divisional Court noted that while Rule 20.04 requires a Master who determines that the only genuine issue for trial is a question of law to adjourn the motion to a judge, the Rule does not mean that a Master cannot apply settled legal principles to the facts of the case, nor does it mean that a Master cannot find that there is no genuine question of law requiring trial. In dismissing the appeal, the Court concluded that the Master had the jurisdiction to apply the legal test for causation to the record before him in determining the motion for summary judgment.

The Court went on to note that the Master, when appropriate, can draw an adverse inference from the failure of a party to lead evidence on the motion.  In this case, the Master drew such an inference respecting, among other things, the plaintiffs’ failure to obtain an expert report responding to the expert report relied on by the defendants which directly challenged the basis of the plaintiffs’ claim and, after taking a hard look at the evidence, the Master concluded that the plaintiffs had not led appropriate evidence to support the elements of their claim at trial.

Judgment Released: July 12, 2011  Link to Judgment  

In the context of an employment dispute, the plaintiff moved for partial summary judgment in relation to unpaid wages and termination pay allegedly owing to him by the defendant employer.  The motions judge dismissed the plaintiff’s motion for summary judgment finding that there were facts in dispute and a genuine issue for trial.  The plaintiff appealed a portion of the dismissal of the motion on the basis that there was no genuine issue for trial respecting his claim for unpaid wages.  

In dismissing this aspect of the appeal, the Court of Appeal found that the motions judge correctly noted that there was a genuine issue for trial as the record before the Court established that many of the material facts concerning the question of the plaintiff’s unpaid wages were disputed, and that the resolution of this core issue will require credibility-based findings based on viva voce evidence.

The plaintiff’s further basis for appeal of the dismissal of the motion for summary judgment was that it was open to the motions judge to order or conduct the trial of an issue to resolve the unpaid wages claim, and the plaintiff alleged that the failure to do so constitutes a reversible error.  The Court of Appeal rejected that assertion, noting that the decision of whether to order or conduct the trial of an issue is a discretionary one and, in the circumstances of the case and given the allegations of the parties, it was within the motions judge’s discretion to decline to direct or conduct the trial of an issue on the unpaid wages claim.  Further, the motion judge’s decision in that regard attracts deference from the Court of Appeal.

Judgment Released:  September 29, 2011   Link to Judgment

On a motion for summary judgment, the parties agreed that the applicable test on a Rule 20 motion was that articulated by Pepall J. in Canadian Premier Life Insurance Co. v. Sears Canada Inc., [2010] O.J. No. 3987 (S.C.J.) at para. 70, as follows:

• -The court must be satisfied that there is no genuine issue requiring a trial.
• -To be satisfied, the court may weigh the evidence, evaluate the credibility of a deponent, draw any reasonable inference from the evidence, and order that oral evidence be presented.  By implication, these powers may involve the making of factual findings including a finding of a material fact.
• -The motions judge should take a hard look at all of the evidence to determine whether there is a genuine issue requiring a trial.
• -The burden of proof to establish that there is no genuine issue requiring a trial is on the moving party.
• -The respondent may not rest solely on the allegations or denials in its pleading.
• -Each side should put its best foot forward.
• -The Rule should be interpreted broadly so as to achieve the objectives of reduction of delay and costs, access to justice, and flexibility.  At the same time, it must be acknowledged that elimination of trials is not an objective.  At its core, justice is the ultimate objective.  It is not to be sacrificed in the interests of speed and economy.  That said, Rule 20 clearly contemplates that justice, speed and economy are not mutually exclusive attributes.

Judgment Released: October 4, 2011  Link to Judgment

On a refusals motion, the Court referred to Rule 29.2.03 (proportionality in discovery) and the principles articulated by Justice Perell in Ontario v. Rothmans Inc., including that while under the former case law the Rules provided for questions “relating to any matter in issue” and the scope of discovery was defined with wide latitude, the amendment to the Rule from “relating to any matter in issue” to “relevant to any matter in issue,” suggests a modest narrowing of the scope of examinations for discovery.

Judgment released: July 12, 2011   Link to judgment

In applying Rule 30, dealing with documentary discovery, the Court adopted the definition of “relevancy” set out at paragraph 2.35 of Sopinka, Lederman & Bryant,  The Law of Evidence in Canada, 3d ed (Toronto: Lexis Nexis, 2009), as follows: 

 2.35 A traditionally accepted definition of relevance is that in Sir J.F. Stephen’s  A Digest of the Law of Evidence, where it is defined to mean:

… any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.

Pratte J. in R. v. Cloutier accepted a definition from an early edition of Cross on Evidence:

For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other.  One fact is not relevant to another if it does not have real probative value with respect to the latter.

Although the question of relevance and admissibility generally is for the trial judge, whether a fact bears the required relationship to another fact is not usually determined by the application of a legal test.  It is an exercised in the application of experience and common sense.  Thayer believed that logic (not the logic of deductive reasoning, but of knowledge and experience) provided the best guide to the application of this fundamental principle of evidence law.  Doherty J.A. in R. v. Watson stated that “relevance”:

 … requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”.  If it does then “Fact A” is relevant to “Fact B”.  As long as “Fact B” is in itself a material fact in issue or is relevant to a material fact in issue in the litigation, then “Fact A” is relevant and prima facie admissible.

Judgment Released: July 15, 2011   Link to Judgment

The scope of cross-examination on affidavits on a motion for summary judgment, which may end the litigation and potentially grant a final judgment between certain parties, has to be wider than on motions with a narrower focus.

Judgment Released: July 25, 2011   Link to Judgment

Where a party seeks substantial indemnity costs on a motion for summary judgment under Rule 20.06, it is the reasonableness of the motion itself, and not the reasonableness of an amount claimed, that is in issue.

Judgment Released: July 27, 2011   Link to Judgment

In this costs decision following a plaintiff’s victory at trial in a simplified procedure action, the plaintiff sought, among other things, disbursements relating to an expert report. The report had been served 12 days before the pre-trial and 38 days before trial. The defence objected to paying the costs of the report and the expert’s trial attendance because the report breached the 90-day service rule of Rule 53.03.  The Court held that although the report was served late, there was no prejudice, the defence had ample time to prepare for their examination, and the expert evidence was helpful. Nonetheless, the Court stated that the breach of the rule “must be sanctioned” and deducted $2,500 from the disbursements claimed for the report.

Judgment Released April 20, 2011  Link to Judgment

Following a motion for summary judgment which was unsuccessful, the plaintiff/responding party sought its costs of the motion.   The unsuccessful moving party resisted an order of costs on the basis that it was reasonable for it to have brought the motion.  While the Court agreed that the motion was reasonable, and that the motion resulted in narrowing issues for trial, it found that the appropriate cost consequences of reasonably bringing an unsuccessful summary judgment motion in this case were that moving party should pay the responding party’s costs on a partial indemnity basis, as the responding party was successful and there was no reason to depart from the general rule.

The Court noted that the amendment to Rule 20.06 removed the presumption of substantial indemnity costs against the unsuccessful party and that the new rule states that the court may award costs against a party on a substantial indemnity basis if that party acted unreasonably by making or responding to a summary judgment motion.  The Court went on to note that in order to deny the successful party their costs, some additional factor should be present beyond the reasonableness in bringing the motion.