On Thursday, the Supreme Court of Canada released two landmark
decisions that make it easier to obtain summary judgments in
Ontario, and will impact thousands of summary judgment motions
across the country.
In its decision, which has implications for businesses of all
sizes as well as individuals when they become involved in a
dispute, the court gave judges much more discretion in issuing
summary judgments, saying "undue process and protracted
trials, with unnecessary expense and delay, can prevent
the fair and just resolution of disputes." (Note: Emphasis
is in the decision.)
The court went on to note that "... ordinary Canadians
cannot afford to access the adjudication of civil
The ruling is important because the often-prohibitively high
cost of taking a case to court stops many Canadians in their tracks
– both businesses and individuals – from launching
actions. The decision should make it simpler, and less expensive,
to ask courts to resolve disputes.
David Sterns and
Jennifer Pocock assisted the Ontario Bar Assn. in arguing the
winning position before the court. Mr. Sterns also chairs an OBA
committee looking at ways to provide greater access to justice in
The court draws a new roadmap for summary judgment motions. Key
is that trials are no longer to be considered the default
procedure. Moving forward, the rules regarding summary judgment are
to be interpreted broadly, making it more widely available than
Judges must now use the expanded powers that include weighing
evidence, evaluating credibility and drawing inferences to avoid a
trial as long as it is not against the interest of justice. The
question judges must ask themselves first is whether using the new
expanded powers on a summary judgment motion can resolve the
Clearly, the court is shaking up the status quo – in fact,
the decision says that is what the Justices are doing. Promoting
access to justice calls for a cultural shift, not a just few
changes in order to adequately address the goals of timeliness,
affordability and proportionality.
Long Time Coming
Summary judgment is a special procedure that does not involve a
traditional trial. Instead, the court can make a judgment based on
filed material and limited testimony from witnesses. The purpose of
summary judgment is to make litigation faster and cheaper.
The two cases decided by the high court stemmed from a landmark
decision by the Ontario Court of Appeal.
In an extraordinary five-judge panel, the Court of Appeal ruled
on five separate appeals to cases decided by summary judgments.
This decision quickly became the rulebook for lawyers and the
benchmark in determining when an action did not need the
"forensic machinery of a trial" to be decided.
The Ontario decision, usually referred to as Combined
Air, provided some much needed direction to the summary
judgment rules that came into force in 2010. Changes to the rules
were prompted by recommendations made back in 2007 by the Hon.
Coulter A. Osborne, Q.C., who said at the time that having
"access to justice" was an overarching issue.
However, Combined Air quickly faced criticism. Some
argued that Parliament's intent behind the amendments had been
thwarted by a very pro-trial Court of Appeal. Now the Supreme Court
of Canada has weighed in to decide the fate of summary judgment in
Ontario and across the country.
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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