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Provide speedy justice at an affordable and proportionate price

In law, a summary judgment is a judgment entered by a court for one party and against another party summarily, i.e., immediately without a full trial. Such a judgment may be issued on the merits of an entire case or on discrete issues in that case. Without an award of summary judgment (or some type of pretrial dismissal), a lawsuit will ordinarily proceed to trial.

The litigation "fast-track"

We all have heard of, or actually experienced, the horror stories of people being involved in litigation that seems to be endless, with ongoing costly examinations for discovery and a trial list that prevented the case from being heard for many months, or years, effectively dragging out the process and making it too expensive for the average Ontarian.

The January 1, 2010 amendments to the Rules of Civil Procedure were designed to make the litigation system more accessible and affordable for Ontarians. The amendments expanded the powers of a judge hearing a motion for summary judgment in Ontario so as to permit him or her to weigh the evidence, evaluate the credibility of an affidavit maker, and draw any reasonable inference from the evidence in determining whether there was an issue requiring a trial. This effectively allows greater access to the litigation "fast-track" for people involved in civil litigation in Ontario.

Motions for summary judgment have been around since 1985. The idea was that if the facts were basically agreed, and could be set out in affidavits, then a judge could decide the issues in the case without having to have a full trial, but rather relying upon the affidavits put before him or her, as well as possible transcripts of cross examinations on those affidavits.

Many contested matters don't involve great issues of credibility.

It's a well-established principle that, particularly in complicated cases where there are credibility issues, the judge at a trial has a real advantage in actually hearing and seeing the witnesses as they testify. This is considered to be a great benefit in determining just who is telling the truth. But many contested issues don't involve great issues of credibility. The parties just don't agree on how the law should be applied to their particular facts. The former situation with complicated credibility issues is more properly dealt with at a full trial. However, the latter situation can be resolved much more promptly, efficiently and cheaply by a motion for summary judgment, commenced just after the close of pleadings (a formal written statement filed with a court by parties in a civil action, other than a motion. By stating what claims and defenses are at issue, pleadings establish the issues to be decided by the court) near the beginning of the process.

Enter the defence lawyer…

Of course ingenious lawyers for the defendant would often try to present the case as one involving credibility issues, even when they either didn't exist, or were relatively minor, or easily resolved. This bought them and their clients more time, although it would drag out the time and expense spent by the frustrated plaintiff.

The problem was that a series of decisions of the Ontario Court of Appeal over the last 15 years emphasized that on a motion for summary judgment the court will never assess credibility, weigh the evidence or make findings of fact. This line of authority, along with a rather extreme cost rule making the loser on such a motion pay full indemnity costs to the winner, effectively discouraged plaintiffs from making full use of this rule.

Welcome changes effective January 1, 2010

It took a change to the rules, effective January 1, 2010, to successfully reverse this Ontario Court of Appeal line of authority, and specifically allow judges on motions for summary judgment to assess credibility, weigh the evidence and make findings of fact. The amendment went on to allow a judge hearing such a motion, where considered necessary, to actually call live evidence if there is a discrete issue that could be resolved by doing so.

Where the motion court judge is able to make findings of fact and law on the motion, then he or she should proceed to hear it and not set the matter down for trial. This is more likely to happen where it is a document-driven case with limited testimonial evidence and limited contentious factual issues.

In cases calling for multiple findings of fact on the basis of conflicting evidence coming from a number of witnesses and involving very lengthy documentary records, a summary judgment motion cannot serve as an adequate substitute for trial.

Much more speedy and affordable mechanism

Consequently, a great number of lawsuits can be resolved with the much more speedy and affordable mechanism of a motion for summary judgment to provide speedy justice at an affordable and proportionate price.

If you have any questions concerning this mechanism or how it may relate to any dispute you may currently be frustrated with, please contact: John Mullen.