Judgment Released: May 8, 2012  Link to Judgment

The Ontario Court of Appeal dealt with an appeal where summary judgment had been granted by the Court below, prior to the release of Combined Air.  The OCA noted that the Court in Combined Air indicated that the “full appreciation” test would likely be met in cases that are largely driven by documents, in which testimonial evidence and contentious factual issues are limited, and the test is unlikely to be met in cases in which there are multiple factual issues involving conflicting evidence from a number of witnesses and a voluminous evidentiary record. 

Nevertheless, the OCA upheld the decision of the motion judge in this case, finding that, despite the voluminous evidentiary record and conflicting evidence from a number of witnesses, the Combined Air formulation of the summary judgment test was met. The OCA found that the record enabled the application judge to have a “full appreciation” of the evidence and issues required to make the findings he did.  The OCA noted that the voluminous evidentiary record in this case was due to the complexity of the transactions and the relationships among the parties however, relatively few documents bear on the one issue on which the case turns: whether one of the defendants was retained by the plaintiff as its agent to help the plaintiff purchase the property in question.  The OCA went on to note that despite the conflicting evidence from a number of witnesses, most of the points of disagreement were minor or about issues that were not material.  Further, while the motion judge was aware that credibility findings should not be made on a summary judgment motion (which he avoided), he was still able decide that a trial was not required to determine the central issue in dispute by concluding that the testimony in favour of the plaintiff’s position would be insufficient in law to establish the agency relationship asserted by the plaintiff “given the strength of the documentary evidence, together with the evidentiary record as a whole, in contradicting [the plaintiff's witnesses] in their assertion.” The OCA concluded that this was a determination the motion judge was entitled to make; in the face of the facts established by the documentary and other evidence, it was open to the motion judge to conclude that the plaintiff could not obtain judgment in its favour at trial as the plaintiff simply could not fulfill its burden of proof.

Judgment Released: September 3, 2012  Link to Judgment 

Following the Ontario Court of Appeal’s decision in Combined Air Mechanical Services Inc. (summarized on this Blog), in two separate cases, the Court dealt with a motion to strike a pending motion for summary judgment.  In Combined Air, the Ontario Court of Appeal noted that a  party faced with a premature or inappropriate motion for summary judgment should have the option of moving to stay or dismiss the motion, where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery.  Justice David Brown has noted that, as a result of that comment by the Court in Combined Air, motions to strike motions for summary judgment have followed.

The decision in George Weston begins with a discussion of Combined Air and considerations relating to summary judgment motions.  Specifically, the new rule 20 was intended to eliminate unnecessary trials, not to eliminate all trials.  The decision reviewed the “hallmarks” of a case that, generally speaking, requires the full appreciation of the evidence through a trial, including: (a) a voluminous motion record; (b) evidence from a large number of witnesses; (c) multiple defendants against whom different theories of liability are advanced; (d) the need to make numerous findings of fact to decide the motion; (e) conflicting evidence on key issues requiring credibility determinations; and/or (f) the absence of reliable documentary yardsticks against which to assess credibility.

Further, cases where summary judgment may be appropriate include: (a) document-driven cases with limited testimonial evidence; (b) cases with limited contentious factual issues; (c) cases where the record can be supplemented at the motion judge’s discretion by hearing oral evidence on discrete issues; (d) limited and uncontentious documentary evidence; (e) limited number of witnesses; and/or (f) where no dispute exists respecting the governing legal principles.

The Court in George Weston encouraged counsel to approach the amendments to the Rules like a box of “Lego-like building blocks”, which should enable counsel to approach the construction of a trial in a wide variety of ways other than the traditional trial, including the use of evidence (in whole or part) by way of affidavit; the use of pre-hearing affidavits and examination transcripts; placing limits on the length of examinations of trial; submitting written opening statements; and the use of agreed statements of facts.

In respect of the motion to strike the pending motion for summary judgment in the George Weston case, the Court noted that the motion for summary judgment was the first step that had been taken since the pleadings in the action had closed, several years before.  A timetable was negotiated and consented to respecting the hearing of the motion and materials were filed by both parties in respect of the motion for summary judgment, including lengthy records and multiple expert reports, when the responding party then brought a motion to strike the motion for summary judgment.  While the Court had strong reservations about whether the case was an appropriate one for summary judgment, the Judge was not prepared to strike the motion at the expense of the time and resources that had been expended preparing for the motion and, in order to satisfy the requirements of the “full appreciation test”, the Court ordered a “modified trial plan” and timetable – which incorporated traditional examinations for discovery as well as use of the materials already prepared in contemplation of the summary judgment motion – in preparation for the final adjudication of the matter.

In respect of the Sobeys motion, the Court noted that the materials filed by the parties clearly indicated that a trial was required for the Court to have a full appreciation of the case. While the parties estimated a summary judgment motion would take three to four days, another three to four weeks was estimated to be required for the trial of the remaining issues.  The Court concluded that hearing the summary judgment motion would not result in “the just, most expeditious and least expensive determination” of the proceeding on the merits and thus refused to schedule the summary judgment motion requested. Instead the Court gave directions respecting the litigation going forward.

Judgment Released: April 13, 2012  Link to Judgment

The Court of Appeal upheld a grant of partial summary judgment sought by a condo corporation against a condo owner who had failed to pay condo fees. While there were several other disputes between the parties (which the trial judge ordered to be dealt with by a trial of issues rather than by summary judgment), there was no authority for the proposition that the requirement to pay condo fees under the Condominium Act was somehow suspended, and the Act explicitly provides that condo fees are payable regardless of any other disputes.

Judgment Released: April 17, 2012   Link to Judgment

It remains an open question whether the Court of Appeal’s decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, applies to summary judgment motions under the Family Law Rules.

Judgment Released: March 29, 2012   Link to Judgment

Under Rule 20, the determination of whether there is a “genuine issue requiring a trial” is a legal determination and the standard of review is correctness.  This is also the case on a question of mixed fact and law where it is said that the motion judge applied an incorrect standard, failed to consider a required element of a legal test, or any similar error in principle.  If the motion judge correctly applied the legal test, any factual determinations made by the motion judge will be reviewed on the deferential standard of palpable and overriding error.

Judgment Released: December 22, 2011   Link to Judgment

Romano v. D’Onofrio (2005), 77 O.R. (3d) 583 (C.A.), which holds that novel causes of action are best determined on a fully developed record at trial rather than on a summary judgment motion, remains good law after Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.

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.