On December 5th 2011, the Ontario Court of Appeal
released its five-judge panel decision considering Ontario's
new rules regarding summary judgment (Combined Air Mechanical
Sevices Inc. v. Flesch, 2011 ONCA 764). The summary judgment
rules were amended on January 1st 2010, after extensive
consultation with the former Associate Chief Justice Coulter
Osborne. Five different appeals were simultaneously considered by
the Court of Appeal, an approach that allowed the Court to apply
the new rules in varied circumstances. John Callaghan, the head of
Gowlings' commercial litigation national practice group, sees
the Court of Appeal's decision as "innovative" and
expects the case to have a major influence on future summary
The Court reviewed the new rules in light of both the former
summary judgment rule, which many judges and lawyers believed
greatly undermined the efficacy of summary judgment motions, and
the recommendations of Mr. Osborne. Mr. Osborne found general
agreement that the former summary judgment rule was not working as
intended because the judges' mandate was too narrow. In
particular, the jurisprudence regarding summary judgment had
limited the ability of motions judges to weigh the evidence
presented. Mr. Osborne had advocated the broadening of judges'
powers on summary judgment motions to permit the court to weigh
evidence and to draw inferences and evaluate credibility where such
assessments can be safely made without a trial.
In its reasons the Court stated that under the new rules,
summary judgment is available in cases where: (1) the parties agree
to submit their dispute to resolution by way of summary judgment;
(2) a claim or defence has no chance of success; and (3), the
motion judge can fully appreciate the evidence and issues to make a
dispositive finding on the basis of the motion record.
The third scenario identified by the Court introduces a new
'full-appreciation test.' As motions involve only a paper
record review where judges do not have the benefit of hearing
witnesses give oral testimony, it is typically difficult for judges
to make findings of credibility and other determinations that may
have bearing on the matters in issue. The Court have now made clear
that under the full-appreciation test, a motion judge must ask:
'Can 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
trial?' In cases where there is conflicting evidence from a
number of witnesses and oral evidence is required, summary judgment
would not be appropriate and the matter should be sent to a full
hearing at trial.
The Court discussed the new 'tools' available to a judge
on a summary judgment motion under the new rules:
Oral Evidence: Necessity of such evidence is to be determined
by the judge hearing the motion (rather than the parties) and such
evidence is appropriate only to determine whether it is safe to
proceed with summary disposition rather than a trial;
Trial Management following a dismissal of the motion: This new
power can be used to salvage the resources that went into an
unsuccessful summary judgment motion, but should not be applied to
effectively order a trial that resembles the dismissed motion.
Costs: Unlike practice under the prior iteration of the rule,
substantial indemnity costs are only available where it is
demonstrated that the moving party acted unreasonably or in bad
Applied to the five cases before it, the Court provided some
guidance on the application of the new rules. The Court found oral
evidence may be appropriate where it is relevant to a specific,
limited issue (Combined Air Mechanical Services Inc. v.
Flesch) and a voluminous evidentiary record will typically
mean a matter ought not to proceed by way of summary judgment
(Mauldin v. Herniak; Bruno Appliance and Furniture v.
Hyrniak). While these cases are helpful in gauging the
Court's present intentions, the new full-appreciation test,
which requires each case to be evaluated on its merits to determine
if it is appropriate for summary judgment, leads us to believe the
'true colours' of the new rules will only come out in the
jurisprudence to follow in the next few years.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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