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.