‘a horse is dangerous at both ends and uncomfortable in the middle’

~ Ian Fleming

The Supreme Court of Canada has endorsed a new approach in Ontario stating “trials have become  increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or  defend themselves when they are sued, and cannot afford to go to trial. Without an effective and  accessible means of enforcing rights, the rule of law is threatened.” 1

To combat these and other challenges, in 2010 Ontario enacted a new summary judgment rule. Under  the 2010 rule, motion judges gained the power to make findings of fact and to hear oral evidence  without convening a full trial. The 2010 rule states that a motion judge shall grant judgment  unless there is a genuine issue requiring a trial. However, the 2010 rule left it open for the  courts to consider how best to decide if a genuine issue requires a trial. In December 2011, the  Court of Appeal for Ontario unveiled the ‘full appreciation test’2 to aid the lower courts through  this procedure. Unfortunately, the test did not achieve the desired outcome (namely cases decided  earlier and more economically); motion judges continued to send cases to the perceived valhalla of  a full trial, delaying justice and running up the costs for everyone involved.

In a principled decision released January 23, 2014, the Supreme Court of Canada swept away the 2011  ‘full appreciation test’ stating it “placed too high a premium” on the conventional trial “given  that such a trial is not a realistic alternative for most litigants”3. Justice Karakatsanis, for a  unanimous Supreme Court of Canada, set out a new approach:

[66] On a motion for summary judgment under Rule 20.04, 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-finding powers. There will be no genuine issue requiring a trial if the summary judgment  process provides her with the evidence required to fairly and justly adjudicate the dispute and is  a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a  genuine issue requiring a trial, she 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). She may, at her discretion, use those  powers, provided that their use is not against the interest of justice. Their use will not be  against the interest of justice if they 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.

In other words, a motion judge is to take a two-step process: first, can judgment be granted on the  evidence before the court? If not, then second, the motion judge must go on to determine whether  the trial can be avoided by receiving additional evidence, for example by way of a mini-trial. If  so, then it is in the ‘interest of justice’ to hear the additional evidence in the motion.

The Supreme Court of Canada also provided guidance into the mechanics of the lead up to and after a  summary judgment motion; directing the parties (where there are complex issues or the record is  voluminous) to involve the motion judge in determining how and what evidence is to be presented in  the summary judgment motion. Further, in order to salvage the resources invested:

[78] Where a motion judge dismisses a motion for summary judgment, in the absence of compelling  reasons to the contrary, she should also seize herself of the matter as the trial judge. I agree  with the Osborne Report that the involvement of a single judicial officer throughout

saves judicial time since parties will not have to get a different judge up to speed each time an  issue arises in the case. It may also have a calming effect on the conduct of litigious parties and  counsel, as they will come to predict how the judicial official assigned to the case might rule on  a given issue. [p. 88]

[79] While such an approach may complicate scheduling, to the extent that current scheduling  practices prevent summary judgment motions being used in an efficient and cost effective manner,  the courts should be prepared to change their practices in order to facilitate access to justice.

In a step that may reduce the number of appeals, the Supreme Court of Canada also elevated the  deference to which summary judgment decisions are to be given stating:

[83] Provided that it is not against the “interest of justice”, a motion judge’s decision to  exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or  came to a decision that is so clearly wrong that it resulted in an injustice, her decision should  not be disturbed.

A review of the Supreme Court of Canada’s decision and the 2010 rule reveals the full suite of  tools that are available in summary judgment motions. Time will tell if the newest approach  delivers access to justice in civil cases, resulting in cases being decided on their merits and in  a timely manner while reining-in runaway legal costs. Perhaps the conventional trial is riding into the sunset.