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Civil Litigation - Summary Judgment - Practice

. Karatzoglou v. Commisso

In Karatzoglou v. Commisso (Ont CA, 2023) the Court of Appeal considered an appeal of a dismissal of a partial summary judgment motion in an NFP divorce matter:
(3) Summary judgment was appropriate

[26] The appellant submits that it was inappropriate to order partial summary judgment. She relies primarily on civil law cases.

[27] This was a family law action, and the Family Law Rules, O.Reg. 114/99, apply. By the time the motion was heard, the parties had been in litigation for six years.[3] Rule 2(5) of the Family Law Rules imposes a duty on the court to manage cases, having regard to the objective in r. 2(3) to save time and expense. Rule 17(8) authorizes the case management judge to give directions to narrow the issues. The case management judge scheduled the motion for summary judgment to address Rosetta’s claims against Lisa. This was the appropriate procedure.
. Caplan v. Atas [see the main link for numbered case cites]

In Caplan v. Atas (Sup Ct, 2021) the Superior Court finds a new tort, that of 'internet harassment'. In this quote the court usefully addresses the law of summary judgment:
(a) Summary Judgment Principles

[106] The principles applicable on motions for summary judgment are set out in Hryniak v. Mauldin[29] and Sweda Farms v. Egg Farmers of Ontario.[30]
Prior to Hryniak, the test for summary judgment was: can a full appreciation of the evidence and issues required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?[31] Under this test, generally, in cases where there must be multiple findings of fact on the basis of testimony from a number of witnesses, and/or where there is a voluminous record, a motions judge will not be able to come to a “full appreciation” of the case without a trial. However, that does not mean that a substantial record, or numerous witnesses, will always preclude summary judgment. The focus is on the relationship of the record to the contested issues that have to be decided.[32]

The length and complexity of the statement of claim is of little significance on a motion for summary judgment. The plaintiffs must show that there is evidence to support their allegations.[33] A party may not rest on allegations in its pleadings on a motion for summary judgment. The party must “put its best foot forward” or “lead trumps or risk losing”.[34] [35]
[107] Hryniak dispenses with the trial as the measuring standard against which a motion for summary judgment is measured:
Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.
As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:
(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

(2) On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;[36]

(3) If the court cannot grant judgment on the motion, the court should:

(a) Decide those issues that can be decided in accordance with the principles described in 2), above;

(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;[37]

(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a “full appreciation” of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court’s appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.[38]

[108] Two points from this summary bear emphasis for these motions for summary judgment. First, the parties must put their “best foot forward” on these motions. They must adduce evidence and may not rest on the allegations set out in their pleadings. The plaintiffs have adduced a voluminous record to support their motion. Atas has adduced no evidence in her defence of these motions. This does not mean the plaintiffs should win the motion, solely because of Atas’ failure to place any evidence before the court. It is still for the plaintiffs to prove on a balance of probabilities that there are no issues for trial.

[109] Second, a point seldom discussed in the vast jurisprudence respecting summary judgment, the court is entitled to presume have placed before it “in some form” all of the evidence that will be available for trial. The court does not presume that the evidence on the motion is the “best evidence” or in the form of the evidence that would be tendered at a trial. Quite the contrary, hearsay evidence may be tendered in affidavits on information and belief on a motion for summary judgment, evidence that would not generally be admissible in this form at a trial unless a successful Khan application was brought.[39]

[110] It is expected that there will be fewer witnesses on a motion for summary judgment, and that some evidence may be presented in the form of will-says and other hearsay evidence that places a party’s case before the court in “summary” form: one of the tasks of the motions court will be to consider whether it is necessary to hear directly from witnesses whose evidence has been tendered in hearsay form, either through the use of the extended powers on a summary judgment motion, or by directing that the action, or some aspect of it, be tried.
. Castle Building Centres Group Ltd. v. The Rehill Company Limited

In Castle Building Centres Group Ltd. v. The Rehill Company Limited (Ont CA, 2023) the Court of Appeal considers the propriety of bring a summary judgment motion before disclosure:
[34] Indeed, the appellants have cited no proposition that would limit the availability of summary judgment when sought prior to discovery. Contrary to the appellants’ submission, r. 20.01 expressly allows a plaintiff to bring a motion for summary judgment as soon as the defendant delivers its pleadings. If the appellants’ complaint was that respondent had not complied with disclosure, then the appellants should have taken steps to compel production: see Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONCA 878, at para. 4. Parties are required to put their best foot forward on a summary judgment motion. This they failed to do.
. Deluca v. Bucciarelli

In Deluca v. Bucciarelli (Ont CA, 2022) the Court of Appeal considered the onus on a summary judgment motion:
[13] First, the appellant argued that the motion judge reversed the burden of proof on a summary judgment motion.

[14] We do not accept this submission. As we have said, the appellant does not dispute that she was aware that the conduct alleged in her statement of claim occurred more than two years before the statement of claim was issued. In these circumstances, it was not up to the respondent to prove a negative, i.e., that the appellant was not prevented by fear from discovering her claim or that he did not assault the complainant. Rather, it was up to the appellant to put her best foot forward and adduce sufficient evidence to demonstrate a genuine issue requiring a trial concerning whether she could rely on either of ss. 5(1)(a)(iv) or 16(1)(h.2)(i) of the Act. The motion judge was not satisfied she had done so. For reasons that we will explain in relation to the remaining grounds of appeal, we see no error in this conclusion.
. Prism Resources Inc. v. Detour Gold Corporation

In Prism Resources Inc. v. Detour Gold Corporation (Ont CA, 2022) the Court of Appeal (Lauwers JA) makes some interesting practice observations regarding summary judgment:
[4] I observe that none of the facts, the documents, or the evidence are as well-developed as they would have been had Prism’s summary judgment motion been brought after completion of the ordinary discovery process. But r. 20.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits such a motion. Detour criticizes Prism for its spare approach to the evidence, but the Rules provide avenues by which either party, as well-advised as they are, could have put a more robust record before the motion judge, in accordance with their obligation to put their best foot forward. The too-frequent strategy of playing the onuses and burdens in a summary judgment motion often causes remorse.
. Avedian v. Enbridge Gas Distribution Inc. (Enbridge Gas Distribution)

In Avedian v. Enbridge Gas Distribution Inc. (Enbridge Gas Distribution) (Ont CA, 2021) the Court of Appeal showed it's annoyance with a summary judgment motion brought after a trial date was set:
[14] The motion should not have been permitted to proceed. I draw attention to the “Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region”, (July 1, 2015), s. 69, in force at the time, which provided that “[o]nce trial dates are set, there will be no adjournments of the trial except in extenuating and exceptional circumstances.” There were no extenuating or exceptional circumstances present here. When the motion was brought, Enbridge Inc. was in the same circumstance and possessed the same knowledge as at the time of the March 2018 pre-trial conference before Firestone J. The purpose of the Practice Direction, in this respect, is precisely to avoid this sort of last-minute manoeuvring to the prejudice of other parties. In the result, the motion for partial summary judgment added unnecessary delay, expense, and the squandering of available court time: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 30-31, 34; Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, at paras. 14, 23.
. De Melo v De Melo

In the family law case of De Melo v De Melo (Ont CA, 2015) the Court of Appeal considered (and approved) the propriety of bringing a motion for summary judgment when (1) the matter had not yet been the subject of a settlement or trial management conference, and (2) the motion was heard five months before an already scheduled trial. The reasoning is transferrable to the non-family civil context.

. 790668 Ontario Inc. v. D'Andrea Management Inc.

In 790668 Ontario Inc. v. D'Andrea Management Inc. (Ont CA, 2015) the Court of Appeal expressed caution about the suitability of summary judgment motions to address third party claims (the caution appears equally appropropriate wherever hearing of the primary action is required to inform the court of key facts, such as with counterclaims and crossclaims):
[11] The appellants point out that although this court noted in Hamilton, at para. 18, that summary judgment can be available in the case of third party claims, the court was cautious, citing the reasoning in Bongiardina v. York, (Regional Municipality) (2000), 2000 CanLII 5408 (ON CA), 49 O.R. (3d) 641 (C.A.), where the court said, at para. 15:
There might well be cases in which it would be inappropriate to bring a motion for summary judgment in respect of a third party claim. For example, if the third party claim could not be resolved without detailed knowledge of the factual circumstances that gave rise to the main action, a motion for summary judgment would be premature.
. Hunter-Rutland Inc. v. Huntsville (Town)

In Hunter-Rutland Inc. v. Huntsville (Town) (Ont CA, 2015) the Court of Appeal upheld the motion judge below who, when faced with a summary judgment motion by the defendant but none by the plaintiff, granted summary judgment to the plaintiff:
[5] First, there was nothing wrong with the motion judge granting judgment in favour of HRI in all the circumstances of this case. Had HRI brought its own motion for summary judgment, it is difficult to see how the argument and evidence would have been different given the scope of the issue involved. The jurisprudence supports the conclusion that a motion judge, on summary judgment motions, has the power to grant judgment for or against the moving party: see Whalen v. Hillier (2001), 2001 CanLII 24070 (ON CA), 53 O.R. (3d) 550 (C.A.).
. Maurice v. Alles

In Maurice v. Alles (Ont CA, 2016)the Court of Appeal held that the R20 summary judgment procedures were not normally available in the context of an application, as opposed to an action. Here however the hearing judge's ruling granting summary judgment below was upheld nonetheless as an inconsequential procedural irregularity. The case stands for the proposition that any application seeking this remedy should be first converted to an action:
[25] Generally, a party who has participated in a process in the court below without complaint cannot object to that process on appeal: Harris v. Leikin Group Inc., 2014 ONCA 479 (CanLII), 120 O.R. (3d) 508, at para. 53; see also Marshall v. Watson Wyatt & Co. (2002), 2002 CanLII 13354 (ON CA), 57 O.R. (3d) 813 (C.A.), at paras. 14-15. I nonetheless think it is important to address the issue of the availability of a summary judgment motion on an application under Rule 14, especially given the increased prevalence and importance of summary judgment motions since the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87.

[26] The parties have brought one relevant decision to our attention. In Essex Condominium Corp. No. 5 v. Rose-ville Community Center Assn. (2007), 51 C.P.C. (6th) 89 (Ont. S.C.), Pomerance J. held that summary judgment was not available in the context of an application to wind up a corporation under the Corporations Act, R.S.O. 1990, c. C.38.

[27] Similarly, in Ravikovich v. College of Physicians & Surgeons (Ontario), 2010 CarswellOnt 6643 (S.C.), Ferrier J. concluded that summary judgment is not available in a judicial review application because the remedy is only available for actions and an action is a proceeding that is not an application.

[28] I agree with the analysis of the issue in both cases, ....


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