Summary Judgment in Ontario – Ottawa accident lawyers provide information
In 2010, the Ontario’s Rules of Civil Procedure were significant changed. In particular Rule 20 which now reads A motion to obtain a judgment summarily without the need for a full trial was always a very risky proposition and rarely were such motions brought or won. The cost consequences of losing such a motion were extreme. Prior to the changes to Rule 20, judge’s powers to grant summary judgment were restricted and the moving party had to demonstrate that there was no genuine issue for trial. The case was often that almost anything could be characterized as a genuine issue for trial.
Rule 20 now reads as follows (as of September 24, 2014):
RULE 20 SUMMARY JUDGMENT
20.01 (1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim. R.R.O. 1990, Reg. 194, r. 20.01 (1).
(2) The plaintiff may move, without notice, for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just. R.R.O. 1990, Reg. 194, r. 20.01 (2).
(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim. R.R.O. 1990, Reg. 194, r. 20.01 (3).
EVIDENCE ON MOTION
20.02 (1) An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01 (4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. O. Reg. 438/08, s. 12.
(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. O. Reg. 438/08, s. 12.
20.03 (1) On a motion for summary judgment, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law relied on by the party. O. Reg. 14/04, s. 14.
(2) The moving party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing. O. Reg. 394/09, s. 4.
(3) The responding party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing. O. Reg. 394/09, s. 4.
(4) Revoked: O. Reg. 394/09, s. 4.
DISPOSITION OF MOTION
20.04 (1) Revoked: O. Reg. 438/08, s. 13 (1).
(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. O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13 (2).
(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. O. Reg. 438/08, s. 13 (3).
Oral Evidence (Mini-Trial)
(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. O. Reg. 438/08, s. 13 (3).
Only Genuine Issue Is Amount
(3) Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount. R.R.O. 1990, Reg. 194, r. 20.04 (3); O. Reg. 438/08, s. 13 (4).
Only Genuine Issue Is Question Of Law
(4) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly, but where the motion is made to a master, it shall be adjourned to be heard by a judge. R.R.O. 1990, Reg. 194, r. 20.04 (4); O. Reg. 438/08, s. 13 (4).
Only Claim Is For An Accounting
(5) Where the plaintiff is the moving party and claims an accounting 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 with a reference to take the accounts. R.R.O. 1990, Reg. 194, r. 20.04 (5).
WHERE TRIAL IS NECESSARY
Powers of Court
20.05 (1) Where summary judgment is refused or is granted only in part, the court may make an order specifying what material facts are not in dispute and defining the issues to be tried, and order that the action proceed to trial expeditiously. O. Reg. 438/08, s. 14.
Directions and Terms
(2) If an action is ordered to proceed to trial under subrule (1), the court may give such directions or impose such terms as are just, including an order,
(a) that each party deliver, within a specified time, an affidavit of documents in accordance with the court’s directions;
(b) that any motions be brought within a specified time;
(c) that a statement setting out what material facts are not in dispute be filed within a specified time;
(d) that examinations for discovery be conducted in accordance with a discovery plan established by the court, which may set a schedule for examinations and impose such limits on the right of discovery as are just, including a limit on the scope of discovery to matters not covered by the affidavits or any other evidence filed on the motion and any cross-examinations on them;
(e) that a discovery plan agreed to by the parties under Rule 29.1 (discovery plan) be amended;
(f) that the affidavits or any other evidence filed on the motion and any cross-examinations on them may be used at trial in the same manner as an examination for discovery;
(g) that any examination of a person under Rule 36 (taking evidence before trial) be subject to a time limit;
(h) that a party deliver, within a specified time, a written summary of the anticipated evidence of a witness;
(I) that any oral examination of a witness at trial be subject to a time limit;
(j) that the evidence of a witness be given in whole or in part by affidavit;
(k) that any experts engaged by or on behalf of the parties in relation to the action meet on a without prejudice basis in order to identify the issues on which the experts agree and the issues on which they do not agree, to attempt to clarify and resolve any issues that are the subject of disagreement and to prepare a joint statement setting out the areas of agreement and any areas of disagreement and the reasons for it if, in the opinion of the court, the cost or time savings or other benefits that may be achieved from the meeting are proportionate to the amounts at stake or the importance of the issues involved in the case and,
(I) there is a reasonable prospect for agreement on some or all of the issues, or
(ii) the rationale for opposing expert opinions is unknown and clarification on areas of disagreement would assist the parties or the court;
(l) that each of the parties deliver a concise summary of his or her opening statement;
(m) that the parties appear before the court by a specified date, at which appearance the court may make any order that may be made under this subrule;
(n) that the action be set down for trial on a particular date or on a particular trial list, subject to the direction of the regional senior judge;
(o) for payment into court of all or part of the claim; and
(p) for security for costs. O. Reg. 438/08, s. 14.
(3) At the trial, any facts specified under subrule (1) or clause (2) © shall be deemed to be established unless the trial judge orders otherwise to prevent injustice. O. Reg. 438/08, s. 14.
Order re Affidavit Evidence
(4) In deciding whether to make an order under clause (2) (j), the fact that an adverse party may reasonably require the attendance of the deponent at trial for cross-examination is a relevant consideration. O. Reg. 438/08, s. 14.
Order re Experts, Costs
(5) If an order is made under clause (2) (k), each party shall bear his or her own costs. O. Reg. 438/08, s. 14.
Failure to Comply with Order
(6) Where a party fails to comply with an order under clause (2) (o) for payment into court or under clause (2) (p) for security for costs, the court on motion of the opposite party may dismiss the action, strike out the statement of defence or make such other order as is just. O. Reg. 438/08, s. 14.
(7) Where on a motion under subrule (6) the statement of defence is struck out, the defendant shall be deemed to be noted in default. O. Reg. 438/08, s. 14.
COSTS SANCTIONS FOR IMPROPER USE OF RULE
20.06 The court may fix and order payment of the costs of a motion for summary judgment by a party on a substantial indemnity basis if,
(a) the party acted unreasonably by making or responding to the motion; or
(b) the party acted in bad faith for the purpose of delay. O. Reg. 438/08, s. 14.
EFFECT OF SUMMARY JUDGMENT
20.07 A plaintiff who obtains summary judgment may proceed against the same defendant for any other relief. R.R.O. 1990, Reg. 194, r. 20.07.
STAY OF EXECUTION
20.08 Where it appears that the enforcement of a summary judgment ought to be stayed pending the determination of any other issue in the action or a counterclaim, crossclaim or third party claim, the court may so order on such terms as are just. R.R.O. 1990, Reg. 194, r. 20.08.
APPLICATION TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY CLAIMS
20.09 Rules 20.01 to 20.08 apply, with necessary modifications, to counterclaims, crossclaims and third party claims.
Litigants complained that they were saddled with the costs associated with a trial when in some cases the issues could be determine don summary judgment. Some litigants complained that their access to justice was jeopardized when having to incure the costs of a full trial unnecessarily and having to wait for a trial date, often for many years.
The new Rule changed the test to be applied to summary judgment such that judgment would be granted if there is no genuine issue requiring trial. In other words, unless a trial is absolutely necessary, the dispute can be dealt with summarily on motion. Judges now have wider powers to grant summary judgment. For instance, judges are now permitted to hear and weigh oral evidence. Also, judges can make determinations of credibility. They can also draw inferences from the evidence unless the interest of justice requires that a hearing be conducted on a full evidentiary basis, in other words a trial. Importantly, the cost consequences for unsuccessful litigants who file motions seeking summary judgment are less severe. Now, the judges have discretion to award costs depending on the circumstances, based on the principle of proportionality.
In 2014, the Supreme Court of Canada addressed some important issues relating to the application of the test for summary judgment. The SCC expressly recognized that the Rules pertaining to summary judgment should be interpreted broadly to favour proportionality and fair access to affordable, timely and just adjudication of claims. As a result, summary judgment will be available on motion if the judge is able to make the necessary findings of fact and apply the laws to those facts and the motion is a proportionate, more expeditious and less expensive means to achieve a just result in the circumstances.
This article is provided for information purposes only and the law changes frequently. Always consult a qualified Ottawa injury lawyer to protect your rights and interests.
When you need a serious Ottawa Personal Injury Lawyer, contact us for a free consultation. Call – (613) 315-HURT (4878) today. Marc Quinn, Ottawa Accident and Injury Lawyer