It has not taken long for counsel to test the Ontario courts’ application of the summary judgment procedures established in the Ontario Court of Appeal’s decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.
(les commentaires en français suivent)
Angela Emerson of my office brought a motion for directions effectively staying the motion for summary judgment on the basis that it was inappropriate, as requiring extensive evidence and testing of credibility. She relied on the following pronouncement at para. 58 of the Combined Air judgment:
 Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial. As we point out below, at para. 68, counsel have an obligation to ensure that they are adopting an appropriate litigation strategy. A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.
Ms. Emerson’s motion for directions was heard on March 8, 2012, in a matter styled Livingston v Gravel, unreported, Ont. S.C.J. No. CV-08-359997. The court held that the Court of Appeal intended motions for directions to be brought in matters where examinations for discovery had not been completed: “As I read the Combined Air case, the court intended motions for directions for cases where the action had not proceeded to discoveries and it was therefore arguable that the motion for a summary judgment would be premature. The case at bar is past the discovery stage, and there should be no additional hurdle in the way of the summary judgment motion.”
It may be argued that the court in Livingston applied only the “premature” portion of the phrase “premature or inappropriate,” and that the timetable contemplating extensive responding materials and cross-examinations validated Ms. Emerson’s point. Realistically, until the courts further clarify this aspect of the Court of Appeal’s ruling, it may yet prove challenging to establish some summary judgment motions are “inappropriate” without exchanging all of the evidence and facta demonstrating the motion to be unsuitable for summary judgment.
On May 15, 2012, Justice Brown of the Superior Court released a decision in 1318214 Ontario Limited v. Sobeys Capital Incorporated, 2012 ONSC 2784 (CanLII) contradicting Livingston. Brown J. criticized motions for summary judgment in the Toronto Region after examinations for discovery have been completed, because short trials are often available sooner than summary judgments.
Some Toronto Region litigation counsel have historically brought their share of inappropriate summary judgment motions. Judges faced with motions requiring them to sift through boxes full of records and transcripts are justified in their frustration. They should exercise their discretion under subrules 1.04(1) and (1.1) to construe the adjudicative mandate under clause 20.04(1)(a) and subrule 2.04(2.1) to rule whether they are satisfied there is no requirement for a trial. They should not be assessing the evidence for the purpose of finding facts, until they complete this preliminary overview of the evidence.
As co-author of the Ontario Bar Association’s submission to the Civil Justice Reform Project giving rise to the amendments to the summary judgment rule, I maintain that the courts should make summary judgment more available, not less. The Ontario courts have historically opposed the summary judgment rule, adopted from the U.S. federal courts. Former Associate Chief Justice Osborne, in his report, agreed with the view that the summary judgment rule had become too limited. The Ontario Civil Rules Committee implemented changes to the rules to make summary judgment more available and effective. The process culminated from the widest consultation of civil justice stakeholders in a generation.
The Court of Appeal in Combined Air and the conflicting lower court rulings in Livingston and Sobeys have told us, “you should not bring the motion before completing discovery,” then “you should not bring it after completing discovery.” They have, in effect, responded to the new rule by erecting new bollards in the way of parties and counsel, and by being haphazardly activist in their resistance.
The court in Sobeys points out that the courts have more judge availability to hear short trials than summary judgment motions. In a time when trials are getting longer and the amended rule 20 encourages more summary judgments, users of court services might counter the court’s comments by saying the problem is not to be laid exclusively at the feet of counsel. Fundamental principles of economics and public administration should tell us judges available to hear short trials should now be hearing summary judgment motions. Only the judiciary holds the key to resolving this problem: not counsel, not parties, and not court support staff. The success of British Columbia’s rule 18A, after initial judicial resistance, arrived only after the judiciary adapted to the rule.
Prior leeakazaki.com posts on Combined Air:
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L’arrêt Livingston v Gravel a clarifié les énoncés de la Cour d’appel de l’Ontario dans Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, au sujet des motions d’obtenir les ordonnances préalable en opposant à une motion de jugement sommaire. Même si le juge peut avoir omis sa considération du mot ‘inappropriate’ dans la phrase ‘premature or inappropriate,’ peut-être qu’il nous reste la difficulté ultime d’établir qu’une motion soit mal conçue, dans une motion préalable, sans considération de tout un dossier pour la motion ultime.
Maintenant, avec la sortie de l’arrêt 1318214 Ontario Limited v. Sobeys Capital Incorporated, 2012 ONSC 2784 (CanLII), le tribunal a signalé peut-être qu’une telle motion soit ‘inappropriate’ si ce n’est pas ‘premature.’ Hélas, quoi faire?