One of the biggest Ontario litigation developments in 2011 was the Court of Appeal's unanimous five-judge panel decision in Combined Air Mechanical Services Inc. v Flesch.1 In it, the Court of Appeal took what it called a "fresh approach" to motions for summary judgment governed by Rule 20 of the Ontario Rules of Civil Procedure. The decision has potentially significant implications for all litigators looking to shorten legal proceedings.
The decision in Combined Air involved appeals from five separate decisions of the lower courts on motions for summary judgment. Following the amendments to the Rules of Civil Procedure that came into force in January 2010, the law was, as the Court of Appeal acknowledged, "unsettled."
Prior to the amendments (amendments largely influenced by the Osborne Report2), a line of case law restricted judges' ability to weigh the evidence, draw inferences and evaluate credibility. Furthermore, a presumption was enshrined in Rule 20 that substantial indemnity costs be awarded against an unsuccessful moving party. The combined effect was that courts were hesitant to grant summary judgment when there were any evidentiary disputes and litigators were leery of facing possible cost consequences on the higher substantial indemnity scale in the event the motion failed. In the result, motions for summary judgment were brought only in the clearest of circumstances.
Following the amendments coming into force, divergent lines of authority developed as to how the amended rule was to be applied. It was against this background that the Ontario Court of Appeal proposed "a fresh approach."
Decision of the Court of Appeal
The Court of Appeal contextualized its decision with an extensive review of the operation of Rule 20 prior to the amendments and the recommendations of the Osborne Report.
In its legal analysis, the court stated that eliminating unnecessary trials – not all trials – was the purpose of Rule 20. The court identified three general types of cases suitable for summary judgment, but added that it is unnecessary for a motions judge to categorize a particular case, as there may be overlap. The first category of cases are those where the parties agree to have all or part of the claim determined by summary judgment. The second is composed of claims or defences without merit. The third group of cases are those cases where there is "no genuine issue requiring a trial," in that the trial process is not required in the "interest of justice." It is this final category that was brought into existence by the amendments to Rule 20.
Full appreciation test
In its analysis of when the interest of justice requires a trial, the Court of Appeal noted that the trial process has unique attributes that set it apart from a motion for summary judgment. This includes a trial judge's "privileged position" and "total familiarity" with the evidence and the "trial narrative," which allows effective advocates the ability to structure their case in the most compelling manner possible. The court formulated the test for whether summary judgment can be granted as a question which the motion judge must ask him- or herself: "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 a trial?" The court named this the "full appreciation test," and emphasized that fully appreciating the evidence, in this sense, differed from simply having factual familiarity with the evidence in the motion record. This is the "fresh approach" the court was introducing.
Litigation strategy guidance
Additionally, the court made several comments that are likely to aid counsel in formulating litigation strategy. First, it stated that in cases where the "the nature and complexity of the issues" make a motion for summary judgment premature prior to production of documents and oral discovery, a party should move to stay or dismiss the motion via a motion for directions under rules 1.04(1), (1.1),(2) and 1.05. Second, on a failed motion for summary judgment, costs are now presumed to be awarded on a partial indemnity basis as opposed to on a substantial indemnity basis, unless the motion was brought unreasonably, thus removing a strong disincentive to litigants from bringing a motion for summary judgment. The court noted that the reasonability of bringing a motion would become more closely scrutinized as the jurisprudence concerning summary judgment developed.
The five-judge panel decision in Combined Air clearly arose out of the Court of Appeal's desire to provide litigators with clarity and predictability on motions for summary judgment since the amendments were introduced in January 2010. However, it remains to be seen whether the decision will have that effect.
The wording of the full appreciation test is outwardly highly discretionary. The court's analysis of the concept of full appreciation of the evidence notwithstanding, the decision's discussion of which types of cases are amenable to summary judgment provides more tangible guidance. Cases where there are few facts in dispute, where there are relatively few witnesses, where the evidence is not contentious, where any issues requiring supplementation from oral evidence are narrow and discrete, and where the governing legal principles are well established are cases appropriate for summary judgment.
By contrast, cases with numerous witnesses, where multiple assessments of credibility will be required to reach a decision, where the evidence is complex and conflicts on important issues, and where the documentary evidence required is both extensive and possibly unreliable are not appropriate cases for summary judgment. This would seem self-evident to any experienced counsel, whether under the previous or current Rule.
Complicating this analysis, however, are the outcomes in Mauldin v Hryniak and Bruno Appliance and Furniture v Hryniak, two of the appeals heard. The motion for summary judgment in each action, which were held together, had a total of 18 witnesses who filed affidavits, cross-examination which lasted three weeks, 28 volumes of evidence, and oral argument which spanned four days, at the end of which the plaintiffs submitted a bill of costs for $1.7 million. Although the Court of Appeal stated that "going forward" such actions should be decided by trial, the court refused to set aside the Mauldin action on the basis that the decision had been reached "after careful scrutiny of an extensive record" by the motions judge and the law had still been undecided at the time the judgment was written. Implicit appears to have been a laudable desire to prevent the parties, and the court, from wasting resources in a trial which, in the Court of Appeal's view, would almost inevitably have the same outcome as the motion for summary judgment.3 However, the appeal was allowed in the Bruno Appliance action on the basis that a genuine issue existed for trial.
Several points connected to motions for summary judgment continue to require clarification. The court noted that a party opposing a Rule 20 motion on the basis that discovery and document exchange are required may bring a motion for directions under rules 1.04(1), (1.1), (2) and 1.05 to develop a record capable of satisfying the full appreciation test. Presumably, the judge hearing the motion would need to be convinced a more complete evidentiary picture would allow a full appreciation of the case to be made.
Use of Rule 20
Although it remains to be seen how lower courts will apply the Court of Appeal's decision, three aspects of the judgment suggest that Rule 20 motions are likely to gain greater use. First, the court's reminder that (as stated in the Rule) costs are now on a presumptive partial indemnity scale decreases the financial risk associated with a failed motion. Second, the decision's emphasis on the ability of the court to make directions to "salvage" materials used on a failed motion means that resources prepared for an unsuccessful motion are not necessarily wasted. Third, there is now clear authority that summary judgment may still be granted in the face of contested evidence, as long as the judge hearing the motion can develop a full appreciation of the evidence and issues so as to make a dispositive finding. Together, these three aspects of the amended Rule 20, and the endorsement of their usage by the Court of Appeal, will provide counsel with greater freedom to explore the usage of motions for summary judgment to bring a timely and cost-efficient end to legal disputes.
The author wishes to thank Ms. Jenna Anne de Jong, articling student, for her help in preparing this legal update.
1 Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 [Combined Air].
2 The Honourable Coulter A. Osborne, Q.C. Civil Justice Reform Project: Summary of Findings and Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007) [The Osborne Report].
3 It was reported in legal media outlets that Hryniak intends to seek leave to appeal this decision to the Supreme Court.
Norton Rose Group
Norton Rose Group is a leading international legal practice. We offer a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.
Knowing how our clients' businesses work and understanding what drives their industries is fundamental to us. Our lawyers share industry knowledge and sector expertise across borders, enabling us to support our clients anywhere in the world. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.
We have more than 2900 lawyers operating from 43 offices in Abu Dhabi, Almaty, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Bogotá, Brisbane, Brussels, Calgary, Canberra, Cape Town, Caracas, Casablanca, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.
Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.
On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit nortonrose.com.
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.