The related cases were appeals from decisions of the Ontario
Court of Appeal, one of which had overturned a lower court decision
granting summary judgment with respect to allegations of civil
fraud. In both cases, Justice Karakatsanis (writing for a unanimous
Supreme Court) dismissed the appeals. However, the Court was
critical of the narrow view that the Court of Appeal took of the
circumstances under which summary judgment is appropriate pursuant
to Rule 20 of the Rules of Civil Procedure, which was amended in
2010 in an effort to enhance access to justice.
Summary judgment may not be granted under Rule 20 where there is
a genuine issue requiring a trial. The Court held that in order to
determine whether there is a genuine issue requiring a trial, the
motion judge should engage in a two step process.
First, the motion judge must ask whether the matter can be
resolved in a fair and just manner on a summary judgment motion,
i.e. whether the process:
allows the judge to make the necessary findings of fact;
allows the judge to apply the law to the facts; and
is a proportionate, more expeditious and less expensive means
to achieve a just result.
Second, if it appears to the motion judge that there is a
genuine issue requiring a trial, he or she should then ask if the
need for a trial can be avoided by using the new evidentiary powers
provided under Rules 20.04(2.1) and (2.2), which provide as
(2.1) [Powers] In determining under clause(2) (a) whether there
is a genuine issue requiring a trial, the court shall consider the
evidence submitted by the parties and, if the determination is
being made by a judge, the judge may exercise any of the following
powers for the purpose, unless it is in the interest of justice for
such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
(2.2) [Oral Evidence (Mini-Trial)] A judge may, for the purposes
of exercising any of the powers set out in subrule (2.1), order
that oral evidence be presented by one or more parties, with or
without time limits on its presentation.
These new powers are discretionary and may only be exercised if
it is in the "interest of justice" to do so. The Court of
Appeal suggested the motion judge should only exercise his or her
discretion under Rule 20.04 (2.1) in very limited circumstances
(i.e., where the motion judge can achieve the "full
appreciation" of the evidence and issues on the motion
for summary judgment, in contrast with the benefits of the trial
process, and in cases with few witnesses and limited contentious
factual issues). The Court of Appeal also advised motion judges to
make use of the power to hear oral evidence under Rule 20.04(2.2)
in very limited circumstances (i.e., to hear only from a limited
number of witnesses on discrete issues which would be determinative
of the motion).
Despite dismissing both appeals, Karakatsanis J. emphasized that
amendments to Rule 20 were made to improve access to justice by
encouraging the use of summary judgment to avoid lengthy and
expensive litigation, given that a trial is "not a realistic
alternative for most litigants". She was therefore critical of
the Court of Appeal's approach, finding that they set the bar
for summary judgment too high. For example, Rule 20 does not
require that the evidence be equivalent to that at trial; only that
it be sufficient to fairly resolve the dispute. As stated by
Justice Karakatsanis, the new evidentiary powers at Rules
20.04(2.1) and (2.2) "are presumptively available, rather than
exceptional, in line with the goal of proportionate, cost-effective
and timely dispute resolution".
Karakatsanis J. also commented on two tools available to judges
to maximize the efficiency of a summary judgment motion: (1) the
use of motions for directions to ensure early judicial involvement
in summary judgment motions, and (2) the use of trial management
powers under Rule 20.05 in the event of a failed or partially
successful motion for summary judgment. Significantly, Justice
Karakatsanis held that: "Where a motion judge dismisses a
motion for summary judgment, in the absence of compelling reasons
to the contrary, she should also seize herself of the matter as the
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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