ONCA Clarifies the Summary Judgment Rule

When rule 20 of the Rules of Civil Procedure was amended effective January 1, 2010, to give motion judges greater powers to resolve disputes through summary judgment, it created some uncertainty throughout the legal community as to when it was appropriate to use these enhanced powers to decide an action on the basis of the evidence presented on the motion.

Given this uncertainty, and the conflicting decisions emanating from the amended rule, the Court of Appeal convened a five-judge panel to hear five separate appeals from summary judgments decisions under the amended rule. In addition to hearing from counsel representing the parties on the appeals, five amicus curiae were appointed to provide submissions on how the amended rule should be interpreted and applied.

In its decision, the Court, in addition to resolving the five appeals, aimed to provide guidance on when it is appropriate for a motion judge to use the new powers under rule 20 to determine a matter by way of summary judgment.

Under the 2010 amendments, the test for summary judgment was changed from “no genuine issue for trial” to “no genuine issue requiring a trial.” Additionally, motion judges were granted greater tools to determine a summary judgment motion which they did not have under the former rule. Rule 20.04(2.1) explicitly authorizes a motion judge to weigh evidence, assess credibility, or draw inferences of fact unless the motion judge is of the view that it is in the interest of justice for such powers to be exercised only at a trial. Further, rule 20.04(2.2) allows a motion judge to order the presentation of oral evidence, with or without time limits, for the purpose of exercising any of the powers in rule 20.04(2.1).

In its decision, the Court identified three types of cases that were, generally speaking, amenable to determination on a summary judgment motion. The first type is where the parties agree that it is appropriate to determine an action by way of summary judgment, subject to the court being satisfied that the matter can be decided on the evidence provided. The second type is where claims or defences are shown to be without merit. Both of these types of cases were suitable for summary judgment prior to the 2010 amendments, however, without the ability of the motion judge to use the enhanced powers described above. A third type, which is a result of the 2010 amendments, permits matters to be resolved by summary judgment where the motion judge is satisfied that the issues can be fairly and justly resolved by exercising the powers in rule 20.04(2.1) and where the trial process is not required in the “interest of justice.”

With respect to the second and third types of cases noted above, the Court held that before using the powers in rule 20.04(2.1) to weigh evidence, evaluate credibility, and draw reasonable inferences, a motion judge must ask the following question: 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?

This “full appreciation test” was created to provide a “useful benchmark for deciding whether or not a trial is required in the interest of justice.” The Court held that unless a full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record, the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment and the matter should proceed to trial.

This was exemplified in the 394 Lakeshore Oakville Holdings Inc. v. Misek appeal, which involved whether a party held an easement over part of its neighbour's property. The Court held that since the documentary evidence was limited and not contentious, there were a limited number of relevant witnesses and the governing legal principles were not in dispute, it was appropriate to decide the case on summary judgment after the application of the full appreciation test.

Conversely, in the Mauldin v. Hryniak and Bruno Appliance and Furniture v. Hryniak appeals, the motion record contained 28 volumes of evidence, 18 witnesses testified, numerous findings of fact that had to be determined and issues of credibility. The Court held that, as a general rule, “cases that involve multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record are better served by the trial process as the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings.” The Court of Appeal dismissed the appeal in Mauldin v. Hryniak, thereby affirming the summary judgment for civil fraud against Hryniak granted to the respondents. Leave to appeal is being sought at the Supreme Court of Canada from the Court's decision to allow the appeal from the summary judgment for civil fraud granted to the respondent in Bruno Appliance and Furniture v. Hryniak.

With respect to the power to order oral evidence pursuant to new rule 20.04(2.2), the Court noted that “it is the motion judge, not counsel, who maintains control over the extent of the evidence to be led and the issues to which the evidence is to be directed … The discretion to direct the calling of oral evidence on the motion amounts to no more than another tool to better enable the motion judge to determine whether it is safe to proceed with a summary disposition rather than requiring a trial.” This was seen in the Combined Air Mechanical v. Flesch appeal, where the Court held that it was appropriate for the motion judge to limit the scope of the oral evidence to one or more discrete issues and not to allow the examination to venture into other areas.

The Parker v. Casalese appeal raised the issue of how rule 20 should be applied in the context of an action brought under the simplified procedure in rule 76. The Court noted that summary judgment motions under rule 76 are now governed by the amended rule 20, however, in addition to applying the full appreciation test, the motion judge will also need to assess whether entertaining the motion is consistent with the efficiency rationale reflected in the simplified procedure under rule 76. This is due to the fact that bringing a motion for summary judgment will conflict with the efficiency that can be achieved by simply following the abridged procedures in rule 76.

In creating the “full appreciation test,” the Court paid homage to the trial process and noted that the purpose of the new rule is to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration, the Court held, is whether the summary judgment process will provide an appropriate means for effecting a fair and just resolution of the dispute before the court, which can only be done if the motion judge can obtain a full appreciation of the evidence and issues that is required to make dispositive findings.

Gardner Hodder and Guillermo Schible of Hodder Barristers acted for the appellants in Combined Air v. Flesch.

Daniel Chitiz and Tamara Ramsey of Chitiz Pathak LLP acted for the respondents in Combined Air v. Flesch.

Sarit Batner and Moya Graham of McCarthy Tétrault LLP acted for the appellant Robert Hryniak in Mauldin v. Hryniak and Bruno Appliance and Furniture v. Hryniak.

Javad Heydary and David Alderson of Heydary Hamilton PC acted for the respondents in Mauldin v. Hryniak; Javad Heydary and Ruzbeh Hosseini of Heydary Hamilton PC acted for the respondents in Bruno Appliance and Furniture v. Hryniak.

David Taub and Dominique Michaud of Robins, Appleby & Taub LLP acted for the appellant Misek in 394 Lakeshore v. Misek.

William Chalmers of Aird & Berlis LLP acted for the respondent in 394 Lakeshore v. Misek.

Gregory Sidlofsky and Faren Bogach of Kramer Henderson LLP acted for the appellants in Parker v. Casalese.

Mark Klaiman of Klaiman, Edmonds acted for the respondent Scarfo in Parker v. Casalese.

Charles Wagman of Wagman, Sherkin acted for the respondents Casalese and Di Lauro in Parker v. Casalese.

Malliha Wilson and Kevin Hille of the Attorney General of Ontario acted for the amicus curiae the Attorney General of Ontario.

David Scott, QC, of Borden Ladner Gervais LLP and Patricia Jackson of Torys LLP acted for the amicus curiae The Advocates' Society.

Paul Sweeny of Evans Sweeny Bordin LLP, Robert Van Kessel of Lawrence, Lawrence, Stevenson LLP and David Sterns of Sotos LLP acted for the amicus curiae Ontario Bar Association.

Allan Rouben, Barrister & Solicitor, and Ronald Bohm of SBMB Law acted for the amicus curiae, Ontario Trial Lawyers Association.

Robert Zochodne of Greer, Seiler & Zochodne acted for the amicus curiae County and District Law Presidents Association.