By David I. Bristow QC, LSM, C.Arb
In the May 2010 issue of Construction Canada, this author wrote an article—“Ontario: The New Rules of Practice”—that examined how changes in the province were intended to reduce costs and delay in litigation, and facilitate the early and fair resolution of disputes. Two years after the rule has become law, the question is whether it is working.
One of the changes was the provision of a summary judgment in litigation cases without a trial (Section 20 of the Rules of Civil Procedure). The Rule 20 amendments took up some four and a half pages; they were bound to attract the scent of controversy, and lawyers quickly engaged in swarms of summary judgment cases.
Judges of our courts had different views of what Rule 20 meant, cases dragged on in the summary judgment process and, if there was no resolution, the parties had to then proceed to a trial. Legal expenses and time lost were, in some instances, catastrophic. In one case, the legal expenses on a summary judgment motion requested by the plaintiff were some $1.7 million. In this author’s view, the new Section 20 was not working as hoped.
On December 5, 2011, Ontario’s highest court—the Court of Appeal—rendered a landmark decision on summary judgments in Combined Air Mechanical Services Inc. v Flesch, 2011 ONCA 764. Five separate cases on the subject were heard and a 111-page judgment was delivered on the law as a whole and on each particular case. The importance of the matter was noted, as a five-judge panel was constituted (not the usual panel of three). Twenty-six counsel appeared on the appeal.
The decision opened with this statement, almost a pointed cry for help: “Both the bench and the bar have turned to this court for clarification for what the amended rule does and does
not accomplish.”
The court stated it had reviewed and considered the conflicting reasons from the lower courts and said it was not even going to comment on the merits of the various interpretations “because our decision marks a new departure and a fresh approach to the interpretation and application of the amended Rule 20.” In other words, this could be bluntly interpreted as “what we say, goes.”
What did the court say?
The court found the standard of review that applies to granting or denying a motion for summary judgment is as to whether there is a “genuine issue requiring a trial”—a legal determination. The court set out three types of cases that would be amenable to
summary judgments:
- where the parties agree it is appropriate to determine an action by way of motion for summary judgment (if the court is satisfied it is not appropriate, it may refuse summary judgment notwithstanding the agreement of the parties);
- claims and defenses shown to be without merit or having no chance of success at trial; and
- when the motion judge disposes of cases on the merits where the trial process is not required “in the interest of justice.”
The meaning of “interest of justice” leads to the “full appreciation” test as outlined by the Ontario Court of Appeal, and the judge must ask herself or himself whether the full appreciation of the evidence and issues required to make a dispositive finding be achieved by way of summary judgment or only through trial.
In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses, the court found a summary judgment motion rarely served as an adequate substitute for the trial process. Generally speaking, the motion judge simply cannot achieve the full appreciation of the evidence and issue required to make this dispositive finding. A motion judge is required to assess whether the attributes of a trial process are necessary to enable him or her to fully appreciate the evidence in the issues posed by the case.
In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the:
- benefit of the trial narrative;
- ability to hear witnesses speak in their own words; and
- assistance of counsel as the judge examines the records in chambers.
Full appreciation
Unless there is full appreciation of the evidence and issues required to make this dispositive finding attainable on the motion record as may be supplemented by the presentation of oral evidence, the judge cannot be “satisfied” the issues are appropriately resolved on a motion for summary judgment. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.
The court found a case with limited testimonial evidence and with limited contentious factual issues may meet the test. Further, it held the test may also be met in cases where the record can be supplemented to the requisite degree at the motion judge’s direction by hearing oral evidence on discrete issues. Simply being knowledgeable about the entire content of the motion record is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute. The full appreciation test requires motion judges to do more than simply assess if they are capable of reading and interpreting the evidence put before them.
