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Summary Judgment - Against Moving Party

. Graham v. Toronto (City)

In Graham v. Toronto (City) (Ont CA, 2022) the Court of Appeal considered the situation where a court, facing a summary judgment motion, is considering giving summary judgment in favour of the respondent. These quotes deal in part with notice to the moving party before that is done:
[9] As this court observed in Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, at paras. 11-12, summary judgment motions are intended, in part, to achieve fair and just results. Consequently, where a responding party has not filed a notice of cross-motion that seeks summary judgment against the moving party yet the motion judge intends to grant judgment against the moving party, the court must give the moving party some notice of that litigation risk so that the moving party can address it. The lack of such notice may render any resulting reverse summary judgment unfair.

[10] 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, including: (i) in those judicial regions where scheduling a summary judgment motion must pass through some form of triage or practice court, the motion scheduling request form can inquire whether the responding party intends to ask for a reverse summary judgment; (ii) at the start of a motion hearing, the judge can inquire whether a reverse summary judgment will be sought; (iii) 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 (iv) 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.

[11] In the present case, the motion judge adopted the latter approach. While her decision was under reserve, the motion judge emailed counsel to advise that she usually referred to “some well-established precedents in my summary judgment decisions.” She identified four decisions, providing pinpoint cites to specific paragraphs in each. The motion judge requested that counsel inform her if they wished to make submissions on the cases. Counsel advised that they did not wish to make submissions.

[12] One of the four cases identified by the motion judge was Meridian Credit Union Limited v. Baig, 2016 ONCA 150, 394 D.L.R. (4th) 601, leave to appeal refused, [2016] S.C.C.A. No. 173, with a pinpoint citation to para. 17, where LaForme J.A. wrote:
[17] I pause to note that Meridian had not brought a cross-motion asking for summary judgment in its favour. However, the motion judge did not err by granting summary judgment. Counsel for the appellant submitted that all of the relevant evidence was before the court and explicitly invited the motion judge to render a decision in favour of either party. Two recent decisions from this court make it clear that it is permissible for a motion judge to grant judgment in favour of the responding party, even in the absence of a cross-motion for such relief: King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, 40 R.P.R. (5th) 26, at paras. 14-15; and Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, 124 O.R. (3d) 171, at paras. 50-52.
[13] The motion judge was communicating with counsel for parties, not a self-represented litigant. Her reference to para. 17 of the Meridian Credit Union case clearly put counsel on notice that she was considering granting a reverse summary judgment; there was no other possible reason for the reference. By so doing, the motion judge put the parties on notice of the litigation risk of a reverse summary judgment and afforded them an opportunity to make submissions, which they declined. In those circumstances, we see no unfairness in the procedure followed by the motion judge.



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