Clients often lament that the wheels of justice grind too slowly
and ask what, if anything, can be done to have their dispute
resolved more expeditiously. This reality often leads commercial
lawyers to include Alternative Dispute Resolution (i.e. mediation
and arbitration) agreements into contracts in an attempt to set out
an efficient method of resolving potential future disputes. ADR
agreements can be very effective, but, without getting into the
details in this article, they can also merely add an extra layer or
two into the resolution process which harks back to the maxim,
"justice delayed is justice denied".
Another avenue to achieve fast justice is to seek summary
judgment in the courts. In Ontario, as is the case with many
jurisdictions around the world, the court has the power to grant
judgment on a summary basis without the need of a trial or indeed
many of the procedural steps that lead up to a trial. The proper
goal of a summary judgment motion is to obtain a decision in a
period of months rather than years for less money where the case is
To encourage the use of the summary judgment process in the
courts, the Summary Judgment Rule states that the court
shall grant summary judgment unless there is a genuine
issue requiring a trial.1 Historically the appeal
court's interpretation of the Summary Judgment Rule reined in
the lower court's ability to grant summary judgment by limiting
the judge's ability to weigh the evidence among other things.
The judge's restrained powers combined with possible negative
consequences of losing a summary judgment motion resulted in only
those parties with the surest of cases attempting a proper summary
judgment motion for fear of the consequences of failure. The
outcome was that summary judgment motions were uncommon and only
attempted by the bravest of clients and lawyers.
In November 2007, former Associate Chief Justice Coulter Osborne
made recommendations to change the court process to enhance access
to justice in Ontario. A laudable goal given the reality of modern
day litigation and burden it placed on the parties and the court
system. The report made numerous suggestions, one of which was a
re-write of the Summary Judgment Rule.
The Summary Judgment Rule was re-written and in January 2010 the
new rule came into force, moving the pendulum away from (1) the old
rule - discouraging parties from bringing a summary judgment motion
unless they were very sure to win, to (2) the new rule -
encouraging parties to bring a summary judgment motion if they
thought they had a chance to win. To achieve this goal the
presiding judge was given broader powers including the power to
weigh the evidence and conduct mini-trials. The presumption of
adverse costs sanctions was also removed. The new rule came into
effect in January 2010 and the courts went about their task of
weighing evidence, conducting minitrials and deciding summary
In late June 2011, the Court of Appeal for Ontario struck a five
member Panel (normally the Court has three member panels and
reserves a five member panel for rare occasions) to hear four
separate appeals from summary judgment rulings in four consecutive
hearing days. The Court invited intervenors (non-parties) to make
submissions. These intervenors consisted of various lawyer
associations in Ontario.
One lawyer made submissions that the new rule is a thermonuclear
weapon that overrides a thousand years of common law turning our
legal system into an inquisitorial system and permitting the Judge
to become too engaged in the process. Others submitted that the new
rule properly balances the various competing interests and if there
is any intrusion, it is justified by the benefits to the
The effect of all of this could be that the new rule could
become the new old rule after the Court of Appeal reviews the new
rule, the case law and arguments or at a minimum we will have a
pronouncement from Ontario's highest court on how to apply the
This is a watershed moment. Will we have fast justice again or
is the price too great?
I happened to be in the Court of Appeal for Ontario on another
matter during the week these appeals were being argued. The entire
court house was abuzz with the energy of the hearings. We can
expect a tremendous amount of activity in the legal community when
the Court of Appeal decisions are released.
1 Or in the limited circumstances where the parties agree
to have all or part of the dispute determined by way of summary
judgment, the court satisfied that it is appropriate to grant
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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