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Summary Judgment - General

. D.M. v. The Children’s Aid Society of Ottawa

In D.M. v. The Children’s Aid Society of Ottawa (Div Ct, 2021) the Divisional Court summarized summary judgment basics, here in the context of a self-represented applicant family law case:
[177] In Hryniak v. Mauldin[29] and Bruno Appliance and Furniture, Inc. v. Hryniak,[30] the Supreme Court of Canada held that on a motion for summary judgment, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers provided by the rule. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable, and proportionate procedure.

[178] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under the rule. As a matter of discretion, the motions judge may 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 their use 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. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case.[31]

[179] If a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial; this will be the case when the summary judgment process: (a) allows the judge to make the necessary findings of fact; (b) allows the judge to apply the law to the facts; and (c) is a proportionate, more expeditious and less expensive means to achieve a just result.[32] The motions judge is required to assess whether the attributes of the trial process are necessary to enable him or her to make a fair and just determination.[33]

....

[185] On a summary judgment motion, the responding party may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party in a child protection proceeding may rely on affidavits he or she has already filed and it is not necessary to repeat evidence that he or she has already given by affidavit in the same proceedings.[41]

[186] The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial.[42] The responding party’s speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a summary judgment motion.[43]
. Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga

In Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga (SCC, 2021) the Supreme Court of Canada set out basics of summary judgment motions:
[25] This Court explained in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, that there will be no genuine issue requiring trial under rule 20.04(2)(a) of Ontario’s Rules of Civil Procedure “when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result”: para. 49. While the onus is on the moving party to establish the existence or lack thereof of a genuine issue requiring a trial, “[e]ach side must ‘put its best foot forward’ with respect to the existence or non‑existence of material issues to be tried”: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (C.J. (Gen. Div.)), at p. 434, aff’d [1997] O.J. No. 3754 (QL) (C.A.), and Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, at para. 32.
. Royal Bank of Canada v. 1643937 Ontario Inc.

In Royal Bank of Canada v. 1643937 Ontario Inc. (Ont CA, 2021) the Court of Appeal considered the doctrine concerning summary judgment:
(1) The Framework for Summary Judgment

[23] At the heart of this appeal is the motion judge’s approach to summary judgment and, specifically, her treatment of the evidence and record before her. Absent an error of law, a misdirection, or the creation of an injustice through a decision that is clearly wrong, a motion judge’s determination of these questions is generally entitled to considerable deference on appeal: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 81-84. However, here, appellate intervention is required, as the motion judge fell into error and misdirected herself because she failed to determine whether summary judgment was appropriate, having regard to the entire evidentiary record and the Hryniak analytical framework.

[24] This determination required the motion judge to follow the analytical approach set out in Hryniak, at para. 66, which is summarized as follows:
1. First, the motion judge should have determined if there was a genuine issue requiring a trial based only on the evidence before her, without using the enhanced fact-finding powers under r. 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

2. Second, if there appeared to be a genuine issue requiring a trial, the motion judge should have determined if the need for a trial could be avoided by using the enhanced powers under r. 20.04(2.1) – which allowed her to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence – and under r. 20.04(2.2) to order that oral evidence be presented by one or more parties.
[25] While summary judgment is an important tool for enhancing access to justice and achieving proportionate, timely, and cost-effective adjudication, there is no imperative on the court to use it in every case: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 49; Lesenko v. Guerette, 2017 ONCA 522, 416 D.L.R. (4th) 349, at para. 30. As affirmed by the Supreme Court in Hryniak, at para. 28, the overarching goal remains to have “a fair process that results in a just adjudication of disputes.”

[26] Indeed, notwithstanding the parties’ agreement that the action and counterclaims could be determined by summary judgment, it is still incumbent on the motion judge to decide whether it is appropriate to grant summary judgment: Rules of Civil Procedure, r. 20.04(2)(b).

[27] In determining whether summary judgment is appropriate, motion judges are required to engage with the Hryniak analytical framework process, as described above, look at the evidentiary record, determine whether there is a genuine issue requiring a trial, and assess, in their discretion, whether resort should be taken to the enhanced powers under rr. 20.04(2.1) and (2.2) of the Rules of Civil Procedure. To do otherwise runs the risk that, in an effort to dispose of a case in a summary fashion, motion judges will not properly analyze the evidence: Trotter, at para. 49. Unfortunately, that is what occurred here.

...

[39] Since the evidence adduced by the appellants was capable of supporting an allegation of misrepresentation and was unchallenged by the respondent in cross-examination, it was incumbent upon the motion judge to explain why she rejected the evidence: Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 124, leave to appeal refused, [2016] S.C.C.A. No. 207; Trotter, at para. 54; Lesenko, at para. 19. Her conclusory statements were insufficient. While she recited the evidence, she did not weigh it, evaluate it, or make findings of credibility as she was required to do in this case. She could not simply prefer one position over another without providing an explanation that is sufficient for appellate review: Gordashevskiy v. Aharon, 2019 ONCA 297, at para. 6.

[40] Rather, she was required to undertake a credibility analysis pursuant to the expanded judicial powers under r. 20.04(2.1) of the Rules of Civil Procedure to weigh the evidence, evaluate the credibility of the appellants’ deponents, and draw reasonable inferences: Trotter, at para. 54. Further, if the motion judge determined she could not assess credibility solely on the written record, she should have considered whether oral evidence or a trial were required: Trotter, at para. 55.

[41] While summary judgment may have been appropriate had the motion judge carried out the requisite analysis under r. 20.04(2.1) of the Rules of Civil Procedure and exercised her powers to hear oral evidence pursuant to r. 20.04(2.2), she did not seek to do so.
. Hryniak v. Mauldin

In Hryniak v. Mauldin (SCC,2014) the Supreme Court of Canada heard an appeal emanating from the granting of summary judgment in a civil fraud case. The court took the oppourtunity to expound broadly on the criteria and procedure to be applied in summary judgment motions in light of the new principle of 'proportionality' recently introduced into Ontario's Rules of Civil Procedure by amendments to R20, and the standard of review to be applied in appeals of such orders. Essentially the Supreme Court - in what it described as a legal 'cultural shift' - put it's stamp of approval on the much broader use of summary judgment motions to assess evidence, determine credibility and reach reasonable inferences in such motions, thus condoning procedures much more akin to those of 'applications' rather than 'actions' for many cases.

The case is essential reading for anyone involved in a summary judgment motion: see esp. paras 1-7, 23-84.

. Ontario Securities Commission v. Money Gate Mortgage Investment Corporation

In Ontario Securities Commission v. Money Gate Mortgage Investment Corporation (Ont CA, 2020) the Court of Appeal considered the appropriateness of summary judgment procedures, here in receivership proceedings in a motion seeking 'advice and directions' of the court. The court addresses the use of summary judgment in both the context of receivership proceedings and in a motion other than one for summary judgment:

[8] It is important, given the exigencies of receivership proceedings, that a court supervising the receivership decide issues on a summary basis, rather than pursuant to the costlier and more time consuming process of a trial, in cases where a summary process can determine the merits of a dispute fairly and justly. The motion judge did not err, in deciding that this matter could be dealt with summarily, by borrowing from the approach applied on motions for summary judgment, an approach designed to ensure that a case is disposed of without a trial only where to do so will result in its fair and just determination.

[9] The factual findings the motion judge made were available on the record and her rejection of the appellant’s argument of invalidity based on an unfulfilled condition of consent was free of legal error.

[10] The principles that inform when a court should decline to grant what would be a partial summary judgment ought to be applied in the receivership context with due consideration for the time sensitive and multi-stakeholder nature of a receivership proceeding. The motion judge did not infringe any principle against granting partial summary judgment in the context of this case.

....

[13] The OSC has the power to apply to the Superior Court for the appointment of a receiver of a company where the appointment is in the best interests of the company’s creditors, security holders, or subscribers, or is appropriate for the due administration of Ontario securities law: Securities Act, R.S.O. 1990, c. S.5, ss. 129 (1) and (2).

....

[41] First, the summary judgment process is designed to be a means to adjudicate and resolve disputes without undue process and protracted trials, and thus avoid unnecessary expense and delay: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. A receivership signals that creditors and other stakeholders are in need of protection. Unnecessary expense and delay can further imperil their positions.

[42] Second, summary judgment is designed to be a fair and just process to resolve a dispute and apply the relevant legal principles to the facts as found: Hryniak, at para. 28. The interests of the third party—the stranger to the receivership—are therefore respected.

[43] Third, the dividing line between a case that can be disposed of summarily and one where there should be a trial—the genuine issue requiring a trial test—has been the subject of authoritative jurisprudence and is dealt with regularly by Superior Court judges. The same is true of the surrounding features of the test which address how the record is developed and whether it is adequate to make summary judgment the proportionate, expeditious and less expensive means of achieving a fair result. It is preferable to use an established test than to try to construct a new one. In motions seeking a final decision that are not formally motions for summary judgment, the summary judgment procedure provides useful assistance by analogy: Polywheels Inc. (Re), 2010 ONSC 1265, at paras. 6-7.

[44] I therefore conclude that the motion judge did not err in entertaining the matter although it was raised by a motion for advice and directions, and in analogizing it to a motion for summary judgment.

[45] Nor was there unfairness to the appellant in the motion judge proceeding this way. The Money Gate receiver had been directed to hold the Sale Proceeds pending a distribution motion. The Money Gate receiver’s material on the motion described the history of the 254 Mortgage, noted the appellant’s position that it was asserting a claim to the Sale Proceeds, and set out the receiver’s position that the appellant was aware of and supported 254 borrowing funds and providing a second mortgage. It was clear that the receiver was seeking a final disposition of the appellant’s claim by motion, not by a trial. It was equally clear that the appellant was required, if it wished to oppose the receiver’s request, to support its position as to the merits of its claim and the appropriate process to determine it, on the basis of evidence, which it had the opportunity to file.
. Carmichael v. GlaxoSmithKline Inc.

In Carmichael v. GlaxoSmithKline Inc. (Ont CA, 2020) the Court of Appeal set out the basic approach to summary judgments:
[137] I will first summarize the two-step process for a summary judgment motion under Rule 20 mandated by Hryniak. I will then apply that approach to the evidence in this case.

(a) Hryniak’s two-step process for a summary judgment motion

[138] Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides:
(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[139] It is unclear from the motion judge’s reasons and the record before this court whether, in ordering that Mr. Carmichael’s action is not barred by the Act, the motion judge proceeded under r. 20.04(2)(a) or r. 20.04(2)(b). While I will assess the issue under r. 20.04(2)(a), in accordance with the approach in Hryniak, even if I were to proceed under r. 20.04(2)(b), I would still be satisfied that it is appropriate to grant summary judgment.

[140] Hryniak and the companion case of Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, established a two-step process on a summary judgment motion:
• First, the motion judge asks whether there is a genuine issue requiring a trial, based only on the evidence before the court, and without using the new fact-finding powers under rr. 20.04(2.1) and (2.2.), to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. There will be no genuine issue requiring a trial when the evidence on the motion allows the judge to make the necessary findings of fact and to apply the law to the facts, and where granting summary judgment is a proportionate, more expeditious, and less expensive means to achieve a just result: Hryniak, at para. 66; Bruno, at para. 22.

• Second, if there is a genuine issue requiring a trial, the motion judge should then ask whether a trial can be avoided by using the new fact-finding powers to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. The motion judge has a discretion to use these powers where it would lead to a fair and just result and would serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole: Hryniak, at para. 66; Bruno, at para. 22.
[141] Hryniak did not change the established evidentiary obligation on a motion for summary judgment for each party “to put its best foot forward”: see Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434, aff’d [1997] O.J. No. 3754 (Ont. C.A.); 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, 83 B.L.R. (5th) 186, at para. 49, leave to appeal refused, [2018] S.C.C.A. No. 391. The summary judgment judge is entitled to assume that the evidentiary record is complete and that no more evidence would be available at trial: see Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 17; Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292, 137 O.R. (3d) 570, at para. 54; and Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438, 80 C.C.L.I. (5th) 23, at para. 7.
. Plate v. Atlas Copco Canada Inc.

In Plate v. Atlas Copco Canada Inc. (Ont CA, 2019) the Court of Appeal sets out the necessary conditions for a judge to decide a case on summary judgment:
(c) Summary Judgment – No Genuine Issue for Trial

[73] As Hryniak directs, there will be no genuine issue requiring a trial when the motion judge is able to reach a fair and just determination on the merits of the motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak, at para. 49. What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportionate procedure: Hryniak, at para. 59.



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