Increasingly, the art of the case seems to have become the art of ending the case — and ending it early. Historically, ending a case early meant one of two things: settlement or summary judgment. For the most part, settlement prevailed, frequently because it was a sensible way to sort out a dispute in which a full trial carried considerable risk for all parties. But as Warren Winkler, Chief Justice of Ontario, pointed out in a 2009 article, what he called the “disappearing trial” was a “symptom of the much larger issue of vanishing or at least decreasing, access to the justice system” and “that cases are not being taken to trial is a tangible indication that the public cannot or does not, gain access to the justice system.”
Arguably, an effective system of summary judgment might help with the problem, especially in cases where the facts lean heavily toward a disposition in favour of one party over the other. But even where the risk equation has disproportionately favoured one party, summary judgment has traditionally been a narrow remedy in most Canadian jurisdictions.
“Unless you had a slam-dunk case, there was no point in seeking summary judgement in Ontario,” says Jean-Marc Leclerc in Osler, Hoskin & Harcourt LLP's Toronto office. “Even a good case might not meet the threshold.”
Indeed, as former Ontario Associate Chief Justice Coulter Osborne noted in his 2007 report on the Civil Justice Reform Project, summary judgment motions occurred in only 1 per cent of cases in 2005 and 2006.
“The problem with the old Ontario rules [was that] they left very few options to short-circuit a case at an early stage,” Leclerc says. “The result was that the parties were basically required to resolve cases unless a client was willing to shoulder the often very expensive costs of taking a case to trial.”
Indeed, the visceral attachment of Canadian judges, lawyers and legal tradition to the full trial as the epitome of access to justice produced rules of court that allowed judges to decide cases summarily only when incontrovertible answers to questions of law combined with undisputed facts or admissions led to the inevitable conclusion that a trial was a waste of time — or, as the Supreme Court of Canada put it, there was “no genuine issue to be tried.”
The very heavy onus imposed by this standard on an applicant, and the extent to which trials have been near-sacrosanct in the Canadian judicial system, is best evidenced by the former Ontario rule, discarded less than two years ago, that presumptively exposed a party bringing an unsuccessful summary judgment motion to costs on a substantial indemnity basis. Similar rules were found in New Brunswick, Prince Edward Island, the Northwest Territories and Nunavut.
But things are changing. Faced with public outcry over the delay and costs inherent in the system, commercial clients' demands for more value from their lawyers, and a concern that too many dubious or ill-motivated cases were clogging the dockets for too long, a new paradigm for summary judgment has evolved in a growing number of Canadian jurisdictions, including Ontario, British Columbia, Alberta, Québec and Nova Scotia.
As it turns out, the change in paradigm does not appear so much in any departure from the “genuine issue” test, but in giving counsel and judges expanded leeway to delve into evidentiary issues, including credibility, in determining whether a party has met the standard for summary judgment. In some cases, judges can order mini-trials if they conclude that oral evidence may dispose of an issue.
What makes all of this particularly useful is the notion of partial summary judgment common to virtually all jurisdictions. In other words, judges can award or dismiss judgment on only some of the claims made, or against only one or more of the parties. In addition, most Canadian jurisdictions empower or require judges to make directions as to what, if anything, remains of a case following disposition of a summary judgment motion.
“Even if you lose, you win,” says Crawford Smith in Tory LLP's Toronto office, pointing to the directions given in Harris v. Leikin Group by Ontario Superior Court Justice David Brown. “Even though only one of ten defendants successfully had the case against them dismissed, everybody agreed that the result of the motion and the directions that followed from the arguments meant they were now looking at a one-week trial instead of a four- to six-week trial.”
Alan D'Silva in Stikeman Elliott LLP's Toronto office, who represented some of the defendants who did not succeed on their summary judgment motion in Harris, lauds the process.
“In the past, you either won or you lost, and there were huge cost consequences,” he says. “The new rules definitely made a difference in this case, which is a very good example of how they are supposed to work.”
Creative counsel, then, will see a myriad of opportunities in expanded summary judgment procedures, among them the potential for strategic and tactical advantages, narrowing the issues, speeding up the process and reducing costs. And as will become evident further on in this piece, they're already honing in on the opportunities brought about by more expansive summary judgment procedures — and doing so not only in simple cases but in complex multi-party litigation.
“The costs of litigation have prompted a definite trend in Canada to focus on getting portions of actions resolved more quickly or in shorter proceedings,” says Michelle Awad in McInnes Cooper's Halifax office. “It's now realistic to advert to these goals in most cases and the practice is becoming a much greater part of litigation strategy than ever before.”
Here's what's happening, why it's happening, and how top lawyers are making the most of expanded summary judgment.
ONTARIO
The most discernible shift in the landscape belongs to Ontario, which introduced new rules in January 2010. The amendments reworded the test for summary judgment from “no genuine issue for trial” to “no genuine issue requiring a trial.” They also gave court the authority to weigh evidence, evaluate credibility, draw inferences and order a mini-trial.
To be sure, the ultimate impact of the rules depends upon the decisions of the Ontario Court of Appeal in four summary judgment cases currently on reserve. The amounts in dispute range from the thousands to the millions, and the individual cases involve pleadings of fraud, wrongful dismissal, real estate rights, and construction negligence.
“The basic issue in the appeals was, when it is appropriate for a judge to make findings of fact on a motion for summary judgment and when it is not,” Leclerc says. “But I think it's pretty clear from the history of the Osborne Report and most lower court decisions that have already considered the issue that the Court of Appeal will likely endorse an expansion of a judge's power to decide cases on a motion for summary judgment.”
If the Court decides otherwise, it will be bucking the trend. In 2010, judges issued 115 summary judgment rulings, up 64 per cent from the 70 cases heard under the old rule in 2009. Between January and July 2011, about 85 more such cases came before Ontario's motion courts, reflecting an annual pace that will outstrip the 2009 numbers by 150 per cent and the 2010 statistics by almost 50 per cent.
“The new summary judgment rules have the potential to affect every single civil case before our courts,” says Ira Nishisato in Borden Ladner Gervais LLP's Toronto office. “They have become an important consideration in deciding how to frame and defend claims.”
Arguably, the upsurge in the numbers related to summary judgment is as much a psychological matter as a procedural one.
“The new rules have sharpened the edges of summary judgement in a way that induces lawyers to focus on it on it a little more,” says Geoff Adair of Toronto's Adair Morse LLP. “Nowadays, counsel are more inclined to bring motions in cases where previously the perception was that if there was any evidence at all on the other side, you couldn't win. It's more a matter of confidence than sea change.”
But that confidence, according to Adair, is well-founded. “Judges seem more prepared to take a harder look at a case to see if there is any reasonably credible evidence to support a pleading,” he says. “But the test hasn't changed, because if there's any such evidence, summary judgment is still inappropriate.”
Overall, Adair favours the changes to the rules. “By defining things in a more forceful, direct way, the rule makers have done what they wanted, which is to make the profession more open to the possibilities of summary judgment,” he says. “But they did not intend to and did not effect a fundamental change in the process.”
What the new rules do promote are more opportunities for the exercise of counsel's judgment. “The new rules are more encouraging where you have a pretty good gut feeling that you can blow away the other side's case,” Adair says. “With judges empowered to make a meaningful decision on credibility, counsel should be more inclined to bring the motion, force the opposing party to file an affidavit, and cross-examine vigorously.”
Apparently such opportunities abound. “At the end of the day, a lot of cases or issues in a case turn on the credibility of a single witness, which makes the new rules a great vehicle on narrow issues,” Adair says.
Nishisato is of similar mind. “We're no longer in a situation where any semblance of a credibility contest causes judges to back off and direct a trial,” he says.
All the more so if the Court of Appeal construes the new rules liberally. “If the Court writes a decision that is generally supportive of the philosophy behind the rules, more people will start thinking about packaging a case for summary judgment even if it is a complicated matter,” Smith says.
If Harris is any indicator, counsel are already so inclined. Indeed, the facts and issues in Harris were so complex that the hearing of the summary judgment motions took four days, and Justice Brown required 135 pages of written reasons to dispose of them.
Cases like Harris suggest that summary judgment procedures can go a long way to helping lawyers deal with the sensitivities clients have toward increased costs and delays. “These sensitivities put pressure on counsel to make the summary judgment rules work, even if it involves cooperating to set up the proper framework,” Nishisato adds.
Which is not to say that summary judgment necessarily reduces expenses in all cases. “Between the affidavits, cross-examinations, legal submissions and the hearing, even a simple motion for summary judgment can cost thousands of dollars,” Smith says. “So counsel must have a good handle on the issues, and have that early on.”
Nothing wrong with that — after all, early case assessment and attention to dispositive considerations are regularly cited these days near the top of clients' litigation value-added list.
BRITISH COLUMBIA
BC has not increased its roster of trial judges in about two decades. Many commentators attribute this to the fact that about as many proceedings commenced in the BC Supreme Court are decided by summary trial (1.2 per cent) as by full trial (1.4 per cent). Moreover, statistics indicate that lawyers resort to the rule in some 60 per cent of cases.
“Motions for summary trial are regular occurrences in BC courts at various stages of the process,” says Brent Olhuis of Vancouver's Hunter Litigation Chambers.
Remarkably, the BC summary trial rule has been in existence since 1983. Its origins are found in concerns that the old rule governing summary judgment applications was ineffective because such applications could be easily defeated.
Under the current rule, judges have a preliminary discretion to decide whether a case is “suitable” for the summary trial procedure and whether it will “assist the efficient resolution of the proceedings.” Evidence at the proceedings may be introduced on a number of bases: the basis of affidavits, transcripts of cross-examinations and examinations for discoveries, admissions and expert reports.
“Generally, a case will not be suitable for the summary trial process if there is a central credibility issue that must be decided on hearing oral evidence,” Olhuis says.
Courts may grant judgment unless they are unable to find the facts necessary to decide the issues, or it would be unjust to decide the issues by way of summary trial.
ALBERTA
Alberta's new summary judgment rules also have considerable potential for counsel to explore. “Five years ago, you'd go into a court with a summary judgment application, and very few judges would look at your application with much fervour,” says one veteran counsel.
Enacted as part of a complete overhaul of Alberta's Rules of Court in November 2010, with a stated purpose to resolve claims in a “timely and cost-effective way,” the summary judgment rules allow for the resolution before trial of questions or issues that dispose of all or part of a claim, substantially shorten a trial or save expense. Judges ruling on such motions can make findings of fact and direct that different questions of fact be tried “by different modes.”
The rules have already made an impact. “There's greater proclivity for judges to take a hard look at complex cases,” says Dalton McGrath in Blake, Cassels & Graydon LLP's Calgary office, who recently obtained summary judgement in a $30-million class action against Enmax just months after the utility was sued for allegedly illegal late payment fees.
“It's also dramatically easier to get a particular issue tried, to sever liability from damages, and to adopt mechanisms that will allow courts to dispose of all or substantially all of a claim before trial.”
QUÉBEC
Likely to no one's surprise, Québec has embarked on its own frolic so far as summary judgment is concerned.
In 2007, the Québec legislature commissioned a group of academics to examine the viability of anti-SLAPP legislations. SLAPP is an acronym for “strategic lawsuits against public participation,” usually initiated by corporate defendants to stifle what may be meritorious litigation or criticism against them.
But these kinds of laws are not new. They've been around in the US for about three decades, and roughly half the states have such laws. British Columbia had anti-SLAPP measures, but only for a few months in 2001 when an incoming Liberal government overturned a last-minute decision by its NDP predecessor to enact such legislation.
Although the Québec academics' report cited but three instances of what might be SLAPP suits in the province during the period covered by their investigation, the Justice Minister followed with broadly worded legislation aimed at codifying judicial power to curtail abuse of process in general. The government added the provisions to the Québec Code of Civil Procedure in 2009.
Bill 99's provisions gave the courts new powers and codify other pre-existing ones, including power to declare an action abusive on the request of the parties or even on the court's own initiative; dismiss an action, strike out or amend a submission; reject a pleading, or refuse to allow an examination in cases of abuse; order costs in favour of a party whose financial situation would prevent it from properly presenting the party's case; order damages and punitive damages in addition to costs as compensation for harm suffered, including extrajudicial costs; impose liability on directors and officers of a corporation in cases of abuse; and dismiss all or part of any action that is unfounded in law.
Ironically, in the two years since its enactment, resort to the Québec legislation was not focused on SLAPP suits at all. Indeed, the law has been used successfully most often in the case of frivolous proceedings or pleadings, including medical malpractice and other professional negligence.
However, in June 2011, the Québec Court of Appeal heard an application for anti-SLAPP remedies in Acadia Subaru v. Michaud.
The case arose after Québec City radio journalist Pierre Michaud “used raw language” to criticize what he called inappropriately high prices charged by car dealers in Québec compared to their counterparts in the US. Subsequently, 93 car dealers sued him for defamation.
Michaud responded by moving to declare the action improper under Article 54.1 of the Civil Code of Procedure, which embodies the anti-SLAPP provisions. Michaud maintained that the action was designed to curtail his freedom of expression.
The Court of Appeal ruled that the action was prima facie improper, but allowed it to proceed by way of permitting the dealers to meet their reverse onus of showing that the action was not excessive or unreasonable and justified in law. The Court also ordered the dealers to post security for costs in the amount of $65,000.
“The rule is much broader than our previous rule and is being used frequently now,” says Sylvie Rodrigue, who practises litigation in both Norton Rose OR's Montréal and Toronto offices. “Judges are more likely to resort to it because of the variety of remedies available that are short of outright dismissal at an early stage, which is always a scary thing for a judge to do.”
NOVA SCOTIA
The Nova Scotia summary judgment rules require the applicant to establish that there is no genuine issue of material fact requiring trial. Once the applicant passes this initial hurdle, the burden passes to the respondent to show that his or her claim has a real chance of success on the facts that are not in dispute. The Rule envisages the presentation of evidence by affidavit and cross-examination from that.
Before January 2009, judges who dismissed applications for summary judgment had the discretion to give directions for the further conduct of the proceedings. Amendments that went into effect in January 2009 made such direction mandatory.
Indeed, the rules specifically give the court broad discretion to restrict discovery in view of disclosure already provided by affidavit or cross-examination, narrow the issues, deal with outstanding disclosure issues, permit evidence called on the motion to become the evidence at trial, and order a speedy trial. From a strategic viewpoint, it is clear that the change offers counsel a chance to expedite and circumscribe a case.
Despite the fact that the standard for granting summary judgment has been substantially the same in the province for many years, there has been an observable increase in summary judgment applications.
Michelle Awad in McInnes Cooper's Halifax office, attributes the trend to the rising costs of litigation.
“Counsel are really starting to focus on getting portions of actions resolved in shorter proceedings as part of their litigation strategy,” says Awad. “In my practice, it's something I advert to in most cases and figure out if I can hive anything off.”
Which is precisely what Awad and colleague Jeff Aucoin did in the recent case of Johansson v. General Motors Canada Ltd.
The case arose after Steven and Jody Johansson were injured in a single vehicle accident while passengers in a vehicle driven by Maria Johansson. Some years later, following a recall, the three sued General Motors, alleging that there was a defect in the design and manufacturer of the Chevrolet Maria was driving.
In the meantime, Stephen and Jody gave full and final releases to The Citadel General
Assurance Company, to the car's owner and to Maria.
After they commenced action, Awad, acting for GM, moved for dismissal against Stephen and Jody on the basis of a clause in the releases by which the two agreed not to take action against anyone who might claim contribution or indemnity against the persons released.
As it turned out, GM had pleaded that Maria was solely responsible for the accident and planned to seek contribution from her and Citadel if Steven and Jody were allowed to proceed with their claims.
But despite the fact the neither Stephen nor Jody had independent legal counsel, Justice Glen Johansson dismissed their claims.
In addition to and quite apart from saving her clients the additional costs and potential damages involved in multi-plaintiff proceedings, Awad believes she had also strengthened her case against Maria. “Having more than one plaintiff complicates the case,” Awad says.
Still, Awad isn't convinced that Nova Scotia courts have changed the way they've been applying the summary judgment tests.
“What I do know is that we're seeing more applications for summary judgment, and that results in more cases where summary judgment is being granted.” she says. “It may also be that judges are becoming more familiar and comfortable with the procedure.”
So are counsel. And from all appearances, they're becoming more confident, skilled and successful, in using the summary judgment rules.
Julius Melnitzer is a freelance legal-affairs writer in Toronto.
Arguably, an effective system of summary judgment might help with the problem, especially in cases where the facts lean heavily toward a disposition in favour of one party over the other. But even where the risk equation has disproportionately favoured one party, summary judgment has traditionally been a narrow remedy in most Canadian jurisdictions.
“Unless you had a slam-dunk case, there was no point in seeking summary judgement in Ontario,” says Jean-Marc Leclerc in Osler, Hoskin & Harcourt LLP's Toronto office. “Even a good case might not meet the threshold.”
Indeed, as former Ontario Associate Chief Justice Coulter Osborne noted in his 2007 report on the Civil Justice Reform Project, summary judgment motions occurred in only 1 per cent of cases in 2005 and 2006.
“The problem with the old Ontario rules [was that] they left very few options to short-circuit a case at an early stage,” Leclerc says. “The result was that the parties were basically required to resolve cases unless a client was willing to shoulder the often very expensive costs of taking a case to trial.”
Indeed, the visceral attachment of Canadian judges, lawyers and legal tradition to the full trial as the epitome of access to justice produced rules of court that allowed judges to decide cases summarily only when incontrovertible answers to questions of law combined with undisputed facts or admissions led to the inevitable conclusion that a trial was a waste of time — or, as the Supreme Court of Canada put it, there was “no genuine issue to be tried.”
The very heavy onus imposed by this standard on an applicant, and the extent to which trials have been near-sacrosanct in the Canadian judicial system, is best evidenced by the former Ontario rule, discarded less than two years ago, that presumptively exposed a party bringing an unsuccessful summary judgment motion to costs on a substantial indemnity basis. Similar rules were found in New Brunswick, Prince Edward Island, the Northwest Territories and Nunavut.
But things are changing. Faced with public outcry over the delay and costs inherent in the system, commercial clients' demands for more value from their lawyers, and a concern that too many dubious or ill-motivated cases were clogging the dockets for too long, a new paradigm for summary judgment has evolved in a growing number of Canadian jurisdictions, including Ontario, British Columbia, Alberta, Québec and Nova Scotia.
As it turns out, the change in paradigm does not appear so much in any departure from the “genuine issue” test, but in giving counsel and judges expanded leeway to delve into evidentiary issues, including credibility, in determining whether a party has met the standard for summary judgment. In some cases, judges can order mini-trials if they conclude that oral evidence may dispose of an issue.
What makes all of this particularly useful is the notion of partial summary judgment common to virtually all jurisdictions. In other words, judges can award or dismiss judgment on only some of the claims made, or against only one or more of the parties. In addition, most Canadian jurisdictions empower or require judges to make directions as to what, if anything, remains of a case following disposition of a summary judgment motion.
“Even if you lose, you win,” says Crawford Smith in Tory LLP's Toronto office, pointing to the directions given in Harris v. Leikin Group by Ontario Superior Court Justice David Brown. “Even though only one of ten defendants successfully had the case against them dismissed, everybody agreed that the result of the motion and the directions that followed from the arguments meant they were now looking at a one-week trial instead of a four- to six-week trial.”
Alan D'Silva in Stikeman Elliott LLP's Toronto office, who represented some of the defendants who did not succeed on their summary judgment motion in Harris, lauds the process.
“In the past, you either won or you lost, and there were huge cost consequences,” he says. “The new rules definitely made a difference in this case, which is a very good example of how they are supposed to work.”
Creative counsel, then, will see a myriad of opportunities in expanded summary judgment procedures, among them the potential for strategic and tactical advantages, narrowing the issues, speeding up the process and reducing costs. And as will become evident further on in this piece, they're already honing in on the opportunities brought about by more expansive summary judgment procedures — and doing so not only in simple cases but in complex multi-party litigation.
“The costs of litigation have prompted a definite trend in Canada to focus on getting portions of actions resolved more quickly or in shorter proceedings,” says Michelle Awad in McInnes Cooper's Halifax office. “It's now realistic to advert to these goals in most cases and the practice is becoming a much greater part of litigation strategy than ever before.”
Here's what's happening, why it's happening, and how top lawyers are making the most of expanded summary judgment.
ONTARIO
The most discernible shift in the landscape belongs to Ontario, which introduced new rules in January 2010. The amendments reworded the test for summary judgment from “no genuine issue for trial” to “no genuine issue requiring a trial.” They also gave court the authority to weigh evidence, evaluate credibility, draw inferences and order a mini-trial.
To be sure, the ultimate impact of the rules depends upon the decisions of the Ontario Court of Appeal in four summary judgment cases currently on reserve. The amounts in dispute range from the thousands to the millions, and the individual cases involve pleadings of fraud, wrongful dismissal, real estate rights, and construction negligence.
“The basic issue in the appeals was, when it is appropriate for a judge to make findings of fact on a motion for summary judgment and when it is not,” Leclerc says. “But I think it's pretty clear from the history of the Osborne Report and most lower court decisions that have already considered the issue that the Court of Appeal will likely endorse an expansion of a judge's power to decide cases on a motion for summary judgment.”
If the Court decides otherwise, it will be bucking the trend. In 2010, judges issued 115 summary judgment rulings, up 64 per cent from the 70 cases heard under the old rule in 2009. Between January and July 2011, about 85 more such cases came before Ontario's motion courts, reflecting an annual pace that will outstrip the 2009 numbers by 150 per cent and the 2010 statistics by almost 50 per cent.
“The new summary judgment rules have the potential to affect every single civil case before our courts,” says Ira Nishisato in Borden Ladner Gervais LLP's Toronto office. “They have become an important consideration in deciding how to frame and defend claims.”
Arguably, the upsurge in the numbers related to summary judgment is as much a psychological matter as a procedural one.
“The new rules have sharpened the edges of summary judgement in a way that induces lawyers to focus on it on it a little more,” says Geoff Adair of Toronto's Adair Morse LLP. “Nowadays, counsel are more inclined to bring motions in cases where previously the perception was that if there was any evidence at all on the other side, you couldn't win. It's more a matter of confidence than sea change.”
But that confidence, according to Adair, is well-founded. “Judges seem more prepared to take a harder look at a case to see if there is any reasonably credible evidence to support a pleading,” he says. “But the test hasn't changed, because if there's any such evidence, summary judgment is still inappropriate.”
Overall, Adair favours the changes to the rules. “By defining things in a more forceful, direct way, the rule makers have done what they wanted, which is to make the profession more open to the possibilities of summary judgment,” he says. “But they did not intend to and did not effect a fundamental change in the process.”
What the new rules do promote are more opportunities for the exercise of counsel's judgment. “The new rules are more encouraging where you have a pretty good gut feeling that you can blow away the other side's case,” Adair says. “With judges empowered to make a meaningful decision on credibility, counsel should be more inclined to bring the motion, force the opposing party to file an affidavit, and cross-examine vigorously.”
Apparently such opportunities abound. “At the end of the day, a lot of cases or issues in a case turn on the credibility of a single witness, which makes the new rules a great vehicle on narrow issues,” Adair says.
Nishisato is of similar mind. “We're no longer in a situation where any semblance of a credibility contest causes judges to back off and direct a trial,” he says.
All the more so if the Court of Appeal construes the new rules liberally. “If the Court writes a decision that is generally supportive of the philosophy behind the rules, more people will start thinking about packaging a case for summary judgment even if it is a complicated matter,” Smith says.
If Harris is any indicator, counsel are already so inclined. Indeed, the facts and issues in Harris were so complex that the hearing of the summary judgment motions took four days, and Justice Brown required 135 pages of written reasons to dispose of them.
Cases like Harris suggest that summary judgment procedures can go a long way to helping lawyers deal with the sensitivities clients have toward increased costs and delays. “These sensitivities put pressure on counsel to make the summary judgment rules work, even if it involves cooperating to set up the proper framework,” Nishisato adds.
Which is not to say that summary judgment necessarily reduces expenses in all cases. “Between the affidavits, cross-examinations, legal submissions and the hearing, even a simple motion for summary judgment can cost thousands of dollars,” Smith says. “So counsel must have a good handle on the issues, and have that early on.”
Nothing wrong with that — after all, early case assessment and attention to dispositive considerations are regularly cited these days near the top of clients' litigation value-added list.
BRITISH COLUMBIA
BC has not increased its roster of trial judges in about two decades. Many commentators attribute this to the fact that about as many proceedings commenced in the BC Supreme Court are decided by summary trial (1.2 per cent) as by full trial (1.4 per cent). Moreover, statistics indicate that lawyers resort to the rule in some 60 per cent of cases.
“Motions for summary trial are regular occurrences in BC courts at various stages of the process,” says Brent Olhuis of Vancouver's Hunter Litigation Chambers.
Remarkably, the BC summary trial rule has been in existence since 1983. Its origins are found in concerns that the old rule governing summary judgment applications was ineffective because such applications could be easily defeated.
Under the current rule, judges have a preliminary discretion to decide whether a case is “suitable” for the summary trial procedure and whether it will “assist the efficient resolution of the proceedings.” Evidence at the proceedings may be introduced on a number of bases: the basis of affidavits, transcripts of cross-examinations and examinations for discoveries, admissions and expert reports.
“Generally, a case will not be suitable for the summary trial process if there is a central credibility issue that must be decided on hearing oral evidence,” Olhuis says.
Courts may grant judgment unless they are unable to find the facts necessary to decide the issues, or it would be unjust to decide the issues by way of summary trial.
ALBERTA
Alberta's new summary judgment rules also have considerable potential for counsel to explore. “Five years ago, you'd go into a court with a summary judgment application, and very few judges would look at your application with much fervour,” says one veteran counsel.
Enacted as part of a complete overhaul of Alberta's Rules of Court in November 2010, with a stated purpose to resolve claims in a “timely and cost-effective way,” the summary judgment rules allow for the resolution before trial of questions or issues that dispose of all or part of a claim, substantially shorten a trial or save expense. Judges ruling on such motions can make findings of fact and direct that different questions of fact be tried “by different modes.”
The rules have already made an impact. “There's greater proclivity for judges to take a hard look at complex cases,” says Dalton McGrath in Blake, Cassels & Graydon LLP's Calgary office, who recently obtained summary judgement in a $30-million class action against Enmax just months after the utility was sued for allegedly illegal late payment fees.
“It's also dramatically easier to get a particular issue tried, to sever liability from damages, and to adopt mechanisms that will allow courts to dispose of all or substantially all of a claim before trial.”
QUÉBEC
Likely to no one's surprise, Québec has embarked on its own frolic so far as summary judgment is concerned.
In 2007, the Québec legislature commissioned a group of academics to examine the viability of anti-SLAPP legislations. SLAPP is an acronym for “strategic lawsuits against public participation,” usually initiated by corporate defendants to stifle what may be meritorious litigation or criticism against them.
But these kinds of laws are not new. They've been around in the US for about three decades, and roughly half the states have such laws. British Columbia had anti-SLAPP measures, but only for a few months in 2001 when an incoming Liberal government overturned a last-minute decision by its NDP predecessor to enact such legislation.
Although the Québec academics' report cited but three instances of what might be SLAPP suits in the province during the period covered by their investigation, the Justice Minister followed with broadly worded legislation aimed at codifying judicial power to curtail abuse of process in general. The government added the provisions to the Québec Code of Civil Procedure in 2009.
Bill 99's provisions gave the courts new powers and codify other pre-existing ones, including power to declare an action abusive on the request of the parties or even on the court's own initiative; dismiss an action, strike out or amend a submission; reject a pleading, or refuse to allow an examination in cases of abuse; order costs in favour of a party whose financial situation would prevent it from properly presenting the party's case; order damages and punitive damages in addition to costs as compensation for harm suffered, including extrajudicial costs; impose liability on directors and officers of a corporation in cases of abuse; and dismiss all or part of any action that is unfounded in law.
Ironically, in the two years since its enactment, resort to the Québec legislation was not focused on SLAPP suits at all. Indeed, the law has been used successfully most often in the case of frivolous proceedings or pleadings, including medical malpractice and other professional negligence.
However, in June 2011, the Québec Court of Appeal heard an application for anti-SLAPP remedies in Acadia Subaru v. Michaud.
The case arose after Québec City radio journalist Pierre Michaud “used raw language” to criticize what he called inappropriately high prices charged by car dealers in Québec compared to their counterparts in the US. Subsequently, 93 car dealers sued him for defamation.
Michaud responded by moving to declare the action improper under Article 54.1 of the Civil Code of Procedure, which embodies the anti-SLAPP provisions. Michaud maintained that the action was designed to curtail his freedom of expression.
The Court of Appeal ruled that the action was prima facie improper, but allowed it to proceed by way of permitting the dealers to meet their reverse onus of showing that the action was not excessive or unreasonable and justified in law. The Court also ordered the dealers to post security for costs in the amount of $65,000.
“The rule is much broader than our previous rule and is being used frequently now,” says Sylvie Rodrigue, who practises litigation in both Norton Rose OR's Montréal and Toronto offices. “Judges are more likely to resort to it because of the variety of remedies available that are short of outright dismissal at an early stage, which is always a scary thing for a judge to do.”
NOVA SCOTIA
The Nova Scotia summary judgment rules require the applicant to establish that there is no genuine issue of material fact requiring trial. Once the applicant passes this initial hurdle, the burden passes to the respondent to show that his or her claim has a real chance of success on the facts that are not in dispute. The Rule envisages the presentation of evidence by affidavit and cross-examination from that.
Before January 2009, judges who dismissed applications for summary judgment had the discretion to give directions for the further conduct of the proceedings. Amendments that went into effect in January 2009 made such direction mandatory.
Indeed, the rules specifically give the court broad discretion to restrict discovery in view of disclosure already provided by affidavit or cross-examination, narrow the issues, deal with outstanding disclosure issues, permit evidence called on the motion to become the evidence at trial, and order a speedy trial. From a strategic viewpoint, it is clear that the change offers counsel a chance to expedite and circumscribe a case.
Despite the fact that the standard for granting summary judgment has been substantially the same in the province for many years, there has been an observable increase in summary judgment applications.
Michelle Awad in McInnes Cooper's Halifax office, attributes the trend to the rising costs of litigation.
“Counsel are really starting to focus on getting portions of actions resolved in shorter proceedings as part of their litigation strategy,” says Awad. “In my practice, it's something I advert to in most cases and figure out if I can hive anything off.”
Which is precisely what Awad and colleague Jeff Aucoin did in the recent case of Johansson v. General Motors Canada Ltd.
The case arose after Steven and Jody Johansson were injured in a single vehicle accident while passengers in a vehicle driven by Maria Johansson. Some years later, following a recall, the three sued General Motors, alleging that there was a defect in the design and manufacturer of the Chevrolet Maria was driving.
In the meantime, Stephen and Jody gave full and final releases to The Citadel General
Assurance Company, to the car's owner and to Maria.
After they commenced action, Awad, acting for GM, moved for dismissal against Stephen and Jody on the basis of a clause in the releases by which the two agreed not to take action against anyone who might claim contribution or indemnity against the persons released.
As it turned out, GM had pleaded that Maria was solely responsible for the accident and planned to seek contribution from her and Citadel if Steven and Jody were allowed to proceed with their claims.
But despite the fact the neither Stephen nor Jody had independent legal counsel, Justice Glen Johansson dismissed their claims.
In addition to and quite apart from saving her clients the additional costs and potential damages involved in multi-plaintiff proceedings, Awad believes she had also strengthened her case against Maria. “Having more than one plaintiff complicates the case,” Awad says.
Still, Awad isn't convinced that Nova Scotia courts have changed the way they've been applying the summary judgment tests.
“What I do know is that we're seeing more applications for summary judgment, and that results in more cases where summary judgment is being granted.” she says. “It may also be that judges are becoming more familiar and comfortable with the procedure.”
So are counsel. And from all appearances, they're becoming more confident, skilled and successful, in using the summary judgment rules.
Julius Melnitzer is a freelance legal-affairs writer in Toronto.
