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  • Charles Baker

What is Summary Judgment?

Summary Judgment is a judgment entered by a court for one party and against another party summarily, or without a full trial. Summary Judgment may be issued on the merits of an entire case or on discrete issues. Either the Plaintiff or the Defendant may bring it. If successful, it can save a party much time and legal costs.

In 2014 the Supreme Court of Canada released a decision that dictates a new test for summary judgments under R. 20 of the Ontario Rules of Civil Procedure. In Hryniak v. Mauldin 2014 SCC 7, the Court considered when Summary Judgment might be granted on the basis that there is “no genuine issue requiring a trial.” The Court also considered when it is against the “interest of justice” for the new fact-finding powers to be used on a Summary Judgment motion.

When can Summary Judgment be granted?

With respect to this issue the Court stated at para. 49:

There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

The overarching question to be answered is “whether summary judgment will provide a fair and just adjudication.”[1] The Court went on to state that, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”[2]

What are the “interests of justice”?

The powers available under Rules 20 are presumptively available.[3] They only become unavailable where it is in the interests of justice for such powers only to be exercised at trial. The Court noted that, “The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.”[4]

The judge must engage in a comparison between the advantages of proceeding by way of Summary Judgment versus proceeding by way of trial. Such a comparison may include an examination of the relative cost and speed of each regime, as well as the evidence that is to be presented and the opportunity afforded by each medium to properly examine it. The Court noted that, “when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so.”[5] However, the inquiry must go further and must also consider the consequences of the motion in the context of the litigation as a whole.

Approach to a motion for Summary Judgment

The Court stated that:

  1. The judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-findings powers.[6]

    1. There will be no genuine issue requiring trial if the summary judgment process provides him with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.

  1. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).

    1. He may, at his discretion, use those powers unless it is against the interest of justice to do so. It will not be against the interest of justice if use of the powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.


The Court also examined when it is appropriate to hear oral evidence under Rule 20. The Court held that “[t]his power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action.”[7] A party who seeks to lead oral evidence should be prepared to demonstrate why such evidence would assist the motion judge.[8]

The Court also examined the role of a judge on a Summary Judgment motion with respect to controlling the size of the record, managing the time and cost of the motion and giving other directions. Finally, the Court examined judges’ powers to make certain orders, even whether the motion for Summary Judgment is dismissed, in order to craft a trial procedure that will resolve the dispute in a more appropriate and expeditious way.[9]

1 – At para. 50. 2 – At para. 50. 3 – At para. 67. 4 – At para. 56. 5 – At para. 59. 6 – At para. 66. 7 – At para. 63. 8 – At para. 64. 9 – At para. 77.

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