Canada: Beware The Boomerang: Summary Judgment For Responding Parties

Last Updated: August 31 2018
Article by Jordan Katz

The Supreme Court of Canada's seminal 2014 decision, Hryniak v. Mauldin ("Hryniak")1, promised a "culture shift" that promoted the use of summary judgment motions as a means to achieve more timely and affordable access to justice to parties in the civil litigation system.

The resulting wave of summary judgment motions has given rise to judicial concern about partial summary judgment and its impact on the goals of efficiency and proportionality.2 Courts are increasingly playing a gatekeeper role to discourage such motions from proceeding.

Litigants eager to seek an early and favourable of their actions disposition through the summary judgment mechanism should also be aware of another concern: "boomerang" summary judgment, where the moving party's motion instead results in disposition in the responding party's favour.

The practice has been explicitly approved by the Court of Appeal on multiple occasions3, as being entirely consistent with the objectives of Rule 20 of the Ontario Rules of Civil Procedure, and those promoted in Hryniak.

When a summary judgment motion is heard, the Court is entitled to assume that the parties have put a comprehensive record before it. If it considers that evidentiary record to be sufficient, the Court will make whatever dispositive findings it sees fit on the issues raised, including summary judgment in favour of the respondent. Notably, the Court can and will do so even in the absence of a cross-motion seeking that specific relief.

Superior Court judges have not been hesitant to grant boomerang summary judgment in recent years.4  In Drummond v. The Cadillac Fairview Corp. Ltd.5, the defendant brought a summary judgment motion to dismiss the plaintiff's occupier's liability claim.  Justice Perell granted summary judgment to the plaintiff on liability, even though he had argued only that there were genuine issues for trial that were not amenable to summary judgment at all.6

This power is not untrammeled. Appellate courts have not shied away from overturning trial decisions that grant summary judgment in favour of a responding party.

However, those appeals have generally been allowed not because "boomerang" judgments are themselves inherently problematic, but because trial judges have not properly applied the framework of Rule 20 and Hyrniak, or otherwise deprived the unsuccessful party of procedural fairness, in arriving at those judgments.7

In Fontanelle v. Canada (Attorney General)8, the motion judge granted summary judgment to the plaintiff (respondent) on the issue of liability, arising out of an assault that occurred at a correctional facility.  The respondent did not bring a cross-motion.

The Court of Appeal agreed that the motions judge correctly cited Hryniak, and took no issue with the general practice of awarding summary judgment to the responding party. However, it also found that the motions judge erred by making a finding on liability where the "evidentiary record was woefully inadequate to make a proper determination whether any duty of care owed by the appellant to the respondent in this case had been breached."9 The Court held that the action needed to proceed to trial, and also dismissed the appellant's original motion for summary judgment.

The takeaway for litigants is that they must think carefully about the anticipated contents of their record and the strength of their position before going down the path of pursuing summary judgment. Even if they occasionally overstep, motion judges will be inclined to dispose of actions - – in either party's favour – when summary judgment motions come before them.


1. 2014 SCC 7 [Hryniak].

2. Butera v. Chown, Cairns LLP, 2017 ONCA 783

3. King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215 at para 14; Meridian Credit Union Ltd. v. Baig, 2016 ONCA 150 at para 17; Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922; Singh v. Trump, 2016 ONCA 747 at para 147.

4. See also Van Wyngaarden v Thumper Massager Inc., 2017 ONSC 3909; Milionis v. Rivas, 2017 ONSC 5001; Zaidi v. Hussain, 2018 ONSC 642; Uni-Select Eastern Inc. v. 2067195 Ontario Inc., 2018 ONSC 2345

5. 2018 ONSC 4509 [Drummond].

6. Drummond, ibid at para 49.

7. See. e.g. O.G. v. R.G., 2017 ONSC 6490; Barker v. Barker, 2018 ONCA 255.

8.  2018 ONCA 475 (Fontanelle).

9. Fontanelle, ibid at para 17.

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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Jordan Katz
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