Summary Judgment Has its Day in Court

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Queen's Law Journal. Volume 37, Number 2 (2012), p. 697-730.


The summary judgment procedure is designed to improve the efficiency of civil litigation by enabling the striking out of claims or defences that can be decided without a full trial. In 2010, the Ontario rule on summary judgment changed to facilitate this goal by conferring additional powers on motion judges to weigh evidence, draw inferences and evaluate credibility. In December 2011, the Ontario Court of Appeal clarified the application of the new rule in its Combined Air Mechanical Services v. Flesch decision. The purpose of the new rule is to allow more cases to be decided by way of summary judgment, and the Combined Air decision helped clarify the extent to which the new rule has increased the mandate of motions judges to grant summary judgment. The author posits that the change adds a new category of cases that are appropriate for a summary trial: cases in which the motions judge is satisfied that a full trial is not required to serve the "interest of justice". Even with the new rule and the additional guidance from the Court of Appeal, Ontario courts continue to take a relatively conservative approach. Though the new rule widens the ambit of cases courts may find appropriate for summary judgment, and also widens the mandate of the judges who hear these motions, the author questions whether this means that significantly more cases will be resolved under the new rule. She notes a lasting traditional concern that only a trial with oral evidence will allow for a "full appreciation" of the record. The tradition from which this concern stems idealizes the continuous oral trial as a focal point of litigation and, according to the author, persists at the sacrifice of other efficiency-maximizing options, such as the "summary trial" procedure adopted in British Columbia.

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