This latest bulletin in the series focuses on two legal tools that can be used to avoid an unnecessary trial: summary judgment and the determination of an issue before trial. The Rules of Civil Procedure empower the court to narrow issues and expedite proceedings by granting summary judgment where the common law permits.

Summary judgment is a mechanism for deciding cases where it can be clearly demonstrated that a trial is unnecessary. To grant summary judgment, the court must be satisfied that there is no genuine issue for trial. However, the courts have maintained that the rule is not intended to unnecessarily deprive plaintiffs and defendants of their day in court. For this reason, the courts have strictly interpreted the summary judgment test in recent years.

In addition to summary judgment, parties may seek to have an issue determined, which may shorten a trial or eliminate the need for one, by bringing a motion for:

  • Determination of a question of law raised in a pleading in an action in which the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a significant costs savings; or
  • The striking of a pleading on the ground that it discloses no reasonable cause of action or defence.

Summary Judgment

Overview

A party may ask a court to consider the merits of a case at any stage in a proceeding after pleadings by bringing a motion for summary judgment. On such a motion, a court may grant summary judgment if the court is satisfied that there is “no genuine issue for trial” (described below). Alternatively, the parties may agree to have all or part of a case determined by way of a summary judgment motion. When parties reach such an agreement, the court must still determine whether the case meets the test for summary judgment.

A court may grant full or partial summary judgment, and order a trial on the sole issue of the amount of damages to which the successful party on the motion is entitled, if a court is satisfied that the only genuine issue in a proceeding is the amount to which the party moving for summary judgment is entitled. The court may also grant summary judgment and order a reference (a separate proceeding normally conducted by an assessment officer or Master) to determine the amount of damages to which the successful party should be entitled. For example, where a court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant summary judgment. Where the plaintiff is the moving party and claims an accounting (e.g. calculation of amounts earned or spent by the defendant), and the defendant fails to satisfy the court that there is a preliminary issue to be tried, the court may grant judgment on the claim and order a reference to deal with the accounting.

If summary judgment is refused or is granted only in part, the court has the power to restrict or narrow the issues for trial, and thereby decrease the length and expense of trial. A court may make an order specifying what material facts are not in dispute and defining the issues to be tried. A court may also order that the action proceed to trial on an expedited basis, or within a specified time after hearing a motion for summary judgment.

When there is a motion for summary judgment and the action is ordered to proceed to trial (in whole or in part), the court may impose terms such as an order for payment into court of all or part of the claim, or an order requiring the plaintiff to post security for costs. The court can also limit the nature and scope of documentary discovery or examinations for discovery to matters that were not covered by the affidavits filed on the summary judgment motion, or to any cross-examination on those affidavits that occurred as part of the procedure on the motion.

The Test for Summary Judgment

The test for summary judgment is satisfied when the moving party has shown that there is no genuine issue of material fact requiring a trial. In other words, if there are no material facts in dispute that must be decided by a judge at trial in order for the trial judge to reach a conclusion about the case as a whole, then summary judgment may be granted. Once the moving party has shown that there are no material facts in dispute, the burden of proof on the motion shifts to the responding party to establish that his or her claim has a real chance of success.

On a summary judgment motion, the judge cannot assess credibility of witnesses, weigh the evidence, or make findings of fact, because those functions are reserved for a trial judge or jury. A motions judge on a summary judgment motion is restricted to a narrow role and, before granting relief, must be satisfied that it is clear that a trial is unnecessary. If there is a genuine issue with respect to material facts then, no matter how weak or how strong the pleading that has been attacked by the moving party may appear, the case must proceed to trial.

Procedure on a Summary Judgment Motion

As with many motions, when seeking summary judgment, a party must serve and file appropriate supporting material (affidavit evidence and a factum, or written argument). Affidavit evidence and transcripts of cross-examinations on those affidavits are usually the only types of evidence before a judge on a motion for summary judgment. Failure to provide evidence that is important to the determination of the motion can have negative repercussions. A judge may draw an adverse inference (a negative conclusion) from the failure of a party to provide the evidence of witnesses who have personal knowledge of contested facts. Similarly, a responding party may not rest on the mere allegations or denials in its pleading, but must set out, in responding affidavit material or other evidence, specific facts showing that there is a genuine issue for trial. If a responding party does not do so, it risks losing the motion.

When considering the potential benefits of a summary judgment motion, the parties should also consider that the Rules of Civil Procedure include a mechanism to prevent abuse of the summary judgment rule. If a moving party obtains no relief on a motion for summary judgment, the court must award costs to the other party on a substantial indemnity basis as opposed to the usual (and lower) partial indemnity rate, unless the court determines that it was not unreasonable for the moving party to bring the motion. These costs implications can be a significant deterrent to parties who are contemplating a motion for summary judgment. Parties should carefully weigh the risks and benefits of moving for summary judgment with their legal counsel before bringing a summary judgment motion.

Our June Litigation and Dispute Resolution Bulletin contains a more detailed description of the procedure used on motions. This procedure applies, generally, to motions for summary judgment.

Different Test for Simplified Procedure Actions

The simplified procedure action is a special type of procedure that is generally available to parties who bring claims where the total amount in issue is $50,000 or less, exclusive of interest and costs. There is a different test for summary judgment motions that are brought in a case governed by this simplified procedure. The presiding judge must grant summary judgment unless he or she is unable to decide the issues in the action without crossexamination, or it would be otherwise unjust to decide the issues on the motion. This test is a lower threshold than the test applied for summary judgment motions brought in cases governed by the regular procedure.

Another important distinction between summary judgment under the regular procedure and summary judgment under the simplified procedure is that the court in a simplified procedure matter may make findings of fact, including credibility findings, if it is possible to do so fairly and justly. Also, the cost implications in the regular procedure for an unsuccessful moving party do not apply to summary judgment motions in simplified procedure.

Determination of an Issue Before Trial

In addition to summary judgment, the court is empowered to determine some types of issues before trial if certain conditions are met. The advantage of bringing such a motion is that if a court is able to determine an issue before trial, it can shorten the trial of the action, or render a trial unnecessary.

Determination of an Issue Before Trial

Before trial, a court may determine a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs. Where there are facts in dispute, the court must be satisfied that the moving party has proven that it is plain, obvious and beyond a reasonable doubt that the action cannot succeed. If there are no facts in dispute, then the moving party has to satisfy the court that it is plain and obvious that the action cannot succeed, but on the lower standard of balance of probabilities. Either party can bring such a motion.

Striking a Pleading

This type of motion is useful to employ at the outset of an action if it is plain and obvious that the opposing party’s pleading discloses no valid cause of action or defence. For example, a defendant may move to strike a plaintiff’s statement of claim if the cause of action (the situation or set of facts which entitles a party to seek a judicial remedy) described in the pleading is not sufficient to sustain a legal proceeding. If there is no cause of action, then the court would be unable to grant a remedy or damages, even if the plaintiff proved all of the alleged facts. However, a court will not prevent a plaintiff from proceeding with his or her case simply because of the length and complexity of the issues, the novelty of the cause of action, or the potential for the defendant to present a strong defence.

Action Stayed or Dismissed Due to Jurisdiction

Where there is no real or substantial connection between an Ontario court and the subject matter of the litigation, a defendant may bring a motion to have the litigation stayed (suspended or stopped), until a certain issue has been determined, another legal proceeding has been resolved, or a courtordered condition has been met. For example, in a labour relations dispute, if the action ought to have been brought to a labour relations board or arbitrator, a court may order an action stayed. Similarly, if parties to a contract have agreed to arbitrate a dispute under the contract and one of the parties commences a court action, the other party may bring a motion for a stay so that the matter may proceed by way of arbitration instead. Such a motion may also occur if a plaintiff starts an action in Ontario and there is no real or substantial connection to Ontario.

Action Stayed or Dismissed Due to Capacity

A defendant may also bring a motion for a stay or dismissal of an action where there is reason to believe that either the plaintiff does not have the legal capacity to sue (or continue an action), or the defendant does not have the legal capacity to be sued. For example, where an undischarged bankrupt is sued, that bankrupt may bring a motion to stay the action because an action cannot proceed against an undischarged bankrupt. Similarly, a corporation that has been dissolved and has not been revived has no legal existence to initiate a claim. If an action were commenced on behalf of such a corporation, the defendant could bring a motion for a stay because the corporation does not exist and therefore cannot bring an action.

Action Stayed or Dismissed Due to Another Proceeding Pending

When two actions are commenced in different jurisdictions (one of which is Ontario) and there is significant overlap of the issues in the two actions, a defendant may bring a motion in Ontario to have the Ontario action stayed or dismissed pending the outcome of the other proceeding. Among the factors that the court will consider in determining whether to stay the Ontario action are:

  • which action was commenced first; 
  • which party has the chief burden of proof; 
  • which is the more comprehensive action in scope; and 
  • the balance of convenience, or what is most convenient for everyone concerned (e.g. are most of the parties geographically located closer to one court than the other?).

This rule has been invoked in cases where there has been significant overlap of the issues in an action in the Ontario Superior Court of Justice and an action in the Federal Court, and in cases where the core issue is similar as between an action in Ontario and actions in other provinces or countries. In certain circumstances, the courts may stay such actions in Ontario where permitting both actions to proceed simultaneously would have significant negative implications for the moving party, and no serious prejudice would be suffered by the responding party. To have two similar actions proceed side by side runs the risk of inconsistent court decisions, excessive costs, double recovery of damages, possible delay and duplication of effort by the parties.

Action Stayed or Dismissed Due to Action Being Frivolous, Vexatious or Abuse of Process

A defendant can also move to have an action stayed or dismissed if the action is frivolous, vexatious or an abuse of process. This is another rule that seeks to prevent a multiplicity of proceedings. The court will strike out a claim only in the clearest of cases, where it is plain and obvious that the case cannot succeed. When the case appears only to lack evidence, so long as the gaps may be filled by documentary discovery, examinations for discovery, or evidence at trial, the case will be allowed to proceed. Where a plaintiff pleads all of the essentials to establish his case, the fact that there is a shortage of evidence at the pleading stage does not mean that the action will be dismissed. An example of a claim that might be dismissed on this type of motion is one that is essentially an attempt to relitigate issues that were raised in an earlier action. Another claim that might be dismissed on such a motion is one that contains claims that could have been raised in earlier proceedings.

Conclusion

Summary judgment and the mechanisms to determine an issue before trial support one of the key principles of the Rules of Civil Procedure: to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. If a trial is unnecessary or can be expedited, or the legal issues can be narrowed, then a party has legal tools at its disposal to achieve such a result. However, there are cost consequences for failed motions, so a party should always consult with their legal counsel regarding the risks and benefits of using these procedures.