Today, the Ontario Court of Appeal released a decision which
makes much of that previous jurisprudence obsolete and creates a
new test for determining whether a case is appropriate for summary
judgment. The "full appreciation test"
requires the court to first decide whether the attributes of the
trial process are necessary to fully appreciate the evidence and
issues and allow a fair adjudication of the case.
The decision sent the clear message to counsel and litigants in
Ontario that while some cases are ideal for summary judgment,
others are not. Summary judgment is a powerful tool in the
right cases and an inefficient and unjust exercise in other
lang="EN">The hallmarks of a case that requires a
trial are: (1) a voluminous record, (2) a large number of
witnesses, (3) different theories of liability advanced against
multiple defendants, (4) numerous factual issues, (5) credibility
determinations which lay at the heart of the disputes, and (6) an
absence of documentary evidence against which to assess the
credibility of the witnesses.
The Ontario Court of Appeal clarified that the purpose of Rule
20 is not to eliminate the plenary trial. It is to enhance
access to justice by widening the power of judges to make summary
judgments in cases where the evidence and issues do not require the
full forensic machinery of a trial to be fairly
Sarit Batner, a partner in McCarthy Tétrault's
Litigation Group, was counsel for Robert Hryniak, the appellant in
two of the cases in question, in this landmark decision of the
Ontario Court of Appeal.
For further information about the decision and its implications
for the legal system, please contact Sarit Batner, Partner,
Litigation. For those interested, Sarit will be speaking tomorrow
at the Law Society of Upper Canada on the subject with the
Honorable Justice Susan Lang from the Court of Appeal of
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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