Some welcome editorial comments this week from Justice D. M. Brown, of the Superior Court of Ontario, in
Starting at para. 269 of the decision, the judge candidly describes the disproportionate time required to make rulings on complex summary judgment motions. In a nutshell, he takes aim at one area of judicial allocation, judgment writing time. He says the internal scheduling protocols should be updated to reflect the time needed to deal with summary judgments, which may take up little hearing time but deal with issues as complex as many commercial trials.
In the concluding paragraph, Justice Brown writes, “
If we are to restore the health of Ontario’s ailing civil litigation system, as judges we must not only call on those who appear before us to change their litigation culture, we also must look at our own internal scheduling culture and change it to meet the realities of our times.”
In a paper delivered at a September 12, 2012, meeting at the Ontario Bar Association, Justice Brown had disagreed with comments this writer made to the Canadian Lawyer in a August, 2012, article about the need to allocate judicial resources to meet higher demand for summary judgment motions. In fairness, Justice Brown did not, as I did, propose a separate motion court for summary judgments, separate from procedural motions. But his words are timely and represent an awakening to the need for court modernization.
Judge Brown deserves our praise for speaking candidly about the role of judicial resource administration in problems we face in the justice system. We in the practicing Bar can only encourage more transparency from the judiciary. Judges blaming lawyers will never replace cleaning out the stables. This author, in any event, will offer thanks to him for encouraging the debate. This time, you met me half way.
Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, was released this morning. In the last post on this blog, “Court of Appeal’s ‘new departure and fresh approach’ to Ontario’s summary judgment rule,” this site reported the introduction of a new phrase in the Ontario summary judgment lexicon: the “full appreciation test.”
What exactly do these three words mean? Do they draw a sharp, bright line between cases which deserve to be resolved summarily and those which require a trial? Or do they add confusion by superimposing a new test over the “genuine issue requiring trial” test, with which the lower courts have been grappling since January, 2010? The fact that, during the first hours after the publication of the ruling, many cyber-lawyers in Ontario were hotly debating these questions meant the court failed provide clear guidance. Alas, expectations were perhaps too high. (Clarity is hard to achieve when the Court exceeded its own 30-page guideline for the length of factums.) The court, too, must persuade. Among the least persuaded by the test appear to be new lawyers.
Nostalgic followers of Ontario’s summary judgment jurisprudence will be pleasantly surprised to see a reference to Henry J.’s 1990 decision in Pizza Pizza Ltd. v. Gillespie, but those anticipating a broad expansion of the summary procedure will be disappointed. That decision had been the high point of summary judgment in Ontario. Since then, it has been hard to bring the motion because of the restricted view of its application, and because of the onerous costs consequences for bringing a failed motion for summary judgment. New lawyers will only have known the more restrictive regime, but today’s ruling provides a necessary historical overview.
Most interestingly for the author of this site, the reasoning tracks very closely the comments on summary judgment by Henderson and Akazaki, at page 6 of the OBA Submission to the Civil Justice Reform Project, available in this site’s November 8 post or on the OBA site. In that monograph, the authors had commented:
‘Relaxation of the threshold test to the point where it permits judgment to be granted in cases where there are genuine (not spurious) issues of credibility undermines the primacy of the trial system and brings in the administration of justice into disrepute.’