In Graham v. City of Toronto, 2022 ONCA 149, the Ontario Court of Appeal recently endorsed (again) “boomerang” summary judgment – where the court not only declines to grant summary judgment to the moving party but goes further and grants summary judgment against them, and provided a helpful list of the situations where the moving party will be sufficiently on notice of the risk of boomerang summary judgment.
Going forward, parties and their counsel should be mindful of these situations and the associated risk of summary judgment being granted against them, even where it is not being formally sought by the opposing party. It appears that any reference to the potential risk, however oblique, will be sufficient.
Background: Boomerang Summary Judgment and its Limits
Ever since the Supreme Court of Canada’s transformational 2014 decision in Hryniak v. Mauldin, Canadian courts have endorsed the increased use of summary judgment motions as a way to achieve a more timely and efficient disposition of civil litigation than a conventional trial. Summary judgment is attractive in cases where the issues are amenable to being determined on a paper record, particularly those where the court will not have to assess credibility to make the necessary factual findings.
Over the same time period, courts have also demonstrated an increased willingness to grant summary judgment against the party bringing the motion, regardless of whether the opposing party has actually brought a cross-motion seeking that relief. This is colloquially known as “reverse” or “boomerang” summary judgment. For example, where a defendant seeks summary judgment dismissing a civil action, the court may grant judgment to the plaintiff instead.
The jurisdiction of courts to grant boomerang summary judgment in appropriate circumstances has been endorsed by the Supreme Court of Canada and repeatedly by the Ontario Court of Appeal in recent years. It is grounded in the court’s general jurisdiction to facilitate the just, most expeditious and lease expensive determination of every civil proceeding on its merits.
The following limits on a court’s ability to grant boomerang summary judgment have been recognized to ensure fairness to the moving party against whom it is granted:
- The issue must be within the scope of the summary judgment motion before the court – For example, in Singh v. Trump, the plaintiffs sought summary judgment on certain claims advanced against the defendants (those based on misrepresentations), not various other claims (oppression, collusion, breach of fiduciary duties) and the latter claims were not addressed in the parties’ written submissions. The motions judge granted boomerang summary judgment dismissing all of the claims against the defendants. The Ontario Court of Appeal overturned this ruling as those other claims were not before the motions judge on the summary judgment motion.
- There must be a sufficient legal and evidentiary basis to support granting boomerang summary judgment – For example, in Drummond v. Cadillac Fairview Corporation Limited, the defendant property owner brought a summary judgment motion to have a slip and fall action dismissed. The motions judge granted boomerang summary judgment on the issue of liability in favour of the plaintiff. The Ontario Court of Appeal overturned this ruling as the motions judge had failed to consider and dispose of the contributory negligence defence that was required to grant judgment to the plaintiff, but was not addressed in evidence or argument.
- The respondent(s) should not argue that the case is inappropriate for summary judgment – In Drummond, the Court of Appeal noted that the plaintiff/respondent also argued that the case was not an appropriate one for summary judgment as evidence was needed from other witnesses. If the party themselves doesn’t think the relief should be granted to them in the circumstances, courts have suggested that they will be hesitant to grant it.
- The respondent must be given notice of the risk of boomerang summary judgment and provided an opportunity to address that litigation risk.
In Graham, the Ontario Court of Appeal recently provided helpful guidance on the level of notice necessary to satisfy this last requirement. The answer appears to be, in short: not much.
Graham: Boomerang Summary Judgment Granted
Graham was a personal injury action brought against the City of Toronto for injuries sustained after tripping on a pothole. The City brought a motion for summary judgment dismissing the action as the plaintiff had not provided notice of the accident to the City within the 10-day period prescribed by the City of Toronto Act, 2006. The plaintiffs did not bring a cross-motion and there is no indication that they requested boomerang summary judgment in their written or oral submissions.
While the decision was under reserve, Justice Papageorgiou sent an e-mail to counsel advising that Her Honour usually referred to “some well-established precedents in my summary judgment decisions.” Justice Papageorgiou referenced specific paragraphs of four decisions and asked whether counsel wished to make any submissions on them. One of the paragraphs identified discussed boomerang summary judgment (Meridian Credit Union Limited v. Baig). Other than referring to the case as one of several that was typically cited in Her Honour’s decisions, Justice Papageorgiou did not give any express indication that she was considering granting boomerang summary judgment to the plaintiff. The parties declined to make any further submissions.
Justice Papageorgiou granted boomerang summary judgment dismissing the City’s statutory notice defence and declaring that the plaintiff’s action was not statute-barred. The City appealed arguing, among other things, that boomerang summary judgment was granted unfairly as the City was not aware of the litigation risk.
Graham: Court of Appeal Upholds Decision and Provides Guidance on Sufficient Notice
The Ontario Court of Appeal indicated that there are “numerous ways by which a court can ensure that, in the absence of a formal cross-motion, a moving party has notice of the litigation risk of a reverse summary judgment” and listed the following as sufficient to satisfy the notice requirement:
- in those judicial regions where scheduling a summary judgment motion must pass through some form of triage or practice court (such as the Civil Practice Court in Toronto), the motion scheduling request form can inquire whether the responding party intends to ask for a reverse summary judgment;
- at the start of a motion hearing, the judge can inquire whether a reverse summary judgment will be sought;
- if, during the course of the hearing, the judge forms the view that he or she might grant a reverse summary judgment, the judge should so inform the parties to allow them to respond; or
- if, during the course of preparing reasons disposing of the motion the presiding judge forms the view that granting a reverse summary judgment might be appropriate in the circumstances, the judge should so inform the parties and afford them an opportunity to make further submissions.
The Ontario Court of Appeal held that the motion judge’s reference to Meridian and provision of an opportunity to make submissions was sufficient to put the parties on notice of the litigation risk of boomerang summary judgment and, accordingly, the City was not treated unfairly.
- The risk of boomerang summary judgment should always be factored into the calculus when deciding whether to bring a summary judgment motion.
- Parties and their counsel should be on alert for any reference to the possibility of boomerang summary judgment and be prepared to address it. Counsel may wish to consider pre-emptively addressing why it is inappropriate. Graham demonstrates that the respondent and/or the court do not have to expressly put the moving party on notice of the risk, it seems like any suggestion of the possibility will do.
- In Toronto, the current Requisition to Attend Civil Practice Court form asks whether the motion sought to be scheduled is for summary judgment but does not ask whether boomerang summary judgment will be sought. In light of the suggestion by the Court of Appeal that notice in triage forms would be sufficient to put the moving party on notice of the risk of boomerang summary judgment, it will be interesting to see whether the Requisition is revised to expressly inquire whether it will be sought by the respondent.
On the one hand, this would put all parties and the court on notice from the outset of the possibility of boomerang summary judgment and eliminate the associated procedural fairness concern in every case. On the other hand, it seems like the respondent may invariably check “Yes” and the parties will be compelled to adduce evidence and argument on the contrary of the relief being sought in every case, and/or the court will have to consider it in its reasons, which may result in summary judgment motions becoming more cumbersome – potentially rendering them less useful as a means to achieve more expeditious and efficient justice.
Graham v. City of Toronto, 2022 ONCA 149
Date of Decision: February 16, 2022