Judgment Released: January 24, 2011 Link to Judgment
This was a motion before a single justice of the Court of Appeal for leave to extend time to perfect an appeal. The issue was whether the underlying appeal was of “so little merit” that an extension need not be granted. The underlying appeal concerned whether a motions judge may use the new powers under rule 20.04(2.1) of weighing evidence, evaluating credibility and drawing inferences as though they were exercising the powers and jurisdiction of a trial court judge, rather than using the powers as tools to determine whether there was a genuine issue requiring a trial.
The Court discussed the history of the new Rule 20, its resemblance to Rule 18A (now 9-7) of the British Columbia rules of court, and noted the “two streams of jurisprudence” that have developed on the issue. One stream, advanced by Karakatsanis J. (as she then was), holds that “it is not the role of the motions judge to make findings of fact for the purpose of deciding the action on the basis of the evidence presented on a motion for summary judgment. This change in the Rule does [not] substitute a summary trial for a summary judgment motion. Although a summary judgment motion may, if the motions judge so directs, resemble a summary trial, the test and the decision are different.” The second stream is the “arguably more expansive reading of the new Rule 20  adopted by Perell J. in Healey v. Lakeridge Health Corp., 2010 ONSC 725” which “envisions that the motions judge may use the powers of a trial judge unless it is in the interest of justice for such powers to be exercised only at a trial.” Similarly, another recent decision held that “[c]onsistent with the language of Rule 20, a motions judge is not precluded from making findings of fact for the purpose of deciding the action on the basis of the evidence presented on a motion for summary judgment.”
The Court noted that the Court of Appeal has not yet commented on the scope and meaning of the amended rule, or the extent to which it is open to a judge on a summary judgment motion to make findings of fact for the purpose of deciding the action based on the evidence presented on a motion for summary judgment. As such, it could not be said that the underlying appeal was of “so little merit” that the extension need not be granted.