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Rule 20 of the Rules of Civil Procedure governs motions for summary judgment. It provides a mechanism in cases where there is “no genuine issue for trial” for all or part of a claim to be disposed of in a summary manner without a full trial. The primary inquiry on a motion for summary judgment is whether there is a dispute over a material fact that requires resolution by trial. The onus rests on the party seeking summary judgment to establish that there is no genuine issue for trial. Specific cost consequences automatically apply where a party seeking summary judgment does not succeed or where a party acted in bad faith or for the purpose of delay.
Rule 21 also provides a mechanism to summarily dispose of an action, either by having questions of law determined prior to trial or by striking out a pleading on the basis that it discloses no reasonable cause of action or defence.
The following four issues were identified during the consultation process:
Some suggested that the test of “no genuine issue for trial,” or at least the court's interpretation of it, ought to be modified to fulfil the basic purpose of rule 20. It was also suggested that the powers of the court hearing a summary judgment motion ought to be expanded to permit greater scope for rule 20 motion judges and masters to grant summary judgment.
There was general agreement that rule 20 is not working as intended. Both lawyers and Superior Court judges said that the Court of Appeal's view of the scope of motion judges' authority is too narrow. Whether this view is correct can be debated. Whether it exists is beyond debate. The cost consequences from a failed summary judgment motion have also been said to be too onerous, deterring many litigants and their counsel from using rule 20.
The bar reported, and ministry statistics confirm, that few summary judgment motions are brought today. 24 A subcommittee of the Civil Rules Committee has proposed to replace the current “no genuine issue for trial” test to expand the application of rule 20. Several suggested that it is not the test itself, but the court's interpretation of it, that has limited rule 20's effectiveness. Both judges and lawyers noted that responding parties to a summary judgment motion may put facts in dispute if only to present the motion judge with an issue of credibility and to argue that, as a result, a trial is required. I was told that judges might be reluctant to grant summary judgment given the Court of Appeal decisions that say the court's role in determining such motions is narrowly defined.
A distinct minority did not think rule 20 needs any amendment. Some said it should remain a difficult threshold to meet and that the Court of Appeal has properly interpreted the test. The concern was that should the threshold test be set too low, many meritorious claims or defences might be unjustly disposed of too early by way of summary judgment orders. Any new test should not inhibit the ability of parties to successfully bring forward new causes of action or otherwise arrest the development of the common law.
Quite apart from whether any rule 20 change is made, there was a clear call during consultations for an expedited mechanism for the resolution of straightforward disputed facts, other than a full trial. This is the mini-trial option. The mini-trial, with viva voce evidence, would be heard by the same judge hearing the summary judgment motion. I note that rule 20.05 already allows for a “speedy trial” of an action, in whole or in part, where summary judgment is refused; however, the speedy trial provisions of rule 20 appear not to be used with any regularity.
No Canadian jurisdiction uses the test of “no real prospect of success” in its summary judgment rule, but it is used in the Civil Procedure Rules (rule 24.2) in England and Wales, which states:
The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if ---
- it considers that ---
- the claimant has no real prospect of succeeding on the claim or issue; or
- that defendant has no real prospect of successfully defending the claim or issue; and
- there is no compelling reason why the case or issue should be disposed of at a trial.
The courts in England have noted that while the test of “no real prospect of success at trial” can be stated simply, its application in practice is difficult. 25 Other English appellate decisions appear to have limited the impact of the rule, for reasons similar to those of the Court of Appeal for Ontario.
Changing the test in rule 20 from “no genuine issue for trial” to “no real prospect of success at trial” would, in theory, reduce the threshold for granting summary judgment. At a minimum, it would signal a more liberal approach to summary judgment motions. Should a test of “no real prospect of success” be adopted in Ontario, it would attract judicial interpretation and case law from England and Wales would likely be relied upon to guide the court. The English case law suggests an interpretation of “no real prospect of success” that is equally restrictive, if not more restrictive than the current “no genuine issue for trial” test and the Court of Appeal's interpretation of it. Accordingly, it seems to me that changing the “no genuine issue for trial” test to “no real prospect of success at trial” may well not work, if the goal is to expand the scope of summary judgment.
Moreover, from my reading of the Court of Appeal's decisions on summary judgment, it is how the court has confined the scope of the powers of a motion judge or master under rule 20, not the “no genuine issue for trial” test itself, that has limited the effectiveness of the rule.
If the objective is to provide an effective mechanism for the court to dispose of cases early where in the opinion of the court a trial is unnecessary after reviewing the best available evidence from the parties, then it seems to me to be preferable to provide the court with the express authority to do what some decisions of the Court of Appeal have said a motion judge or master cannot do. That is, permit the court on a summary judgment motion to weigh the evidence, draw inferences and evaluate credibility in appropriate cases. Therefore, any new rule 20 should provide a basis for the motion judge to determine whether such an assessment can safely be made on the motion, or whether the interests of justice require that the issue be determined by the trier of fact at trial.
As rule 20 matters now stand, the result of a rule 20 motion is binary: the motion is granted and the action ends, or it is dismissed and the parties are on the way to full trial. In my view, there should be more flexibility in the system. Where the court is unable to determine the motion without hearing viva voce evidence on discrete issues, the rules should provide for a mini-trial where witnesses can testify on these issues in a summary fashion, without having to wait for a full trial. This can be done in British Columbia through rule 18A. It could be done in Ontario through a similar rule, i.e., by amending rule 20.
As noted, at the conclusion of a summary judgment motion, subrule 20.05(1) already confers on the court the power to order matters to proceed to trial “forthwith” on a list of cases requiring speedy trial. In my view, amendments to rule 20 ought to be made to permit the court, as an alternative to dismissing a summary judgment motion, to direct a “mini-trial” on one or more discrete issues forthwith where the interests of justice require viva voce testimony to allow the court to dispose of the summary judgment motion. The same judge hearing the motion would preside over the mini-trial.
Rule 20.06 provides for substantial indemnity costs against a moving party who is unsuccessful in obtaining summary judgment. Where the moving party obtains no relief, the court shall fix the opposite party's costs on a substantial indemnity basis unless the court is satisfied that the making of the motion, although unsuccessful, was nevertheless reasonable. 26 Substantial indemnity costs may also be imposed where the court finds that any party to a motion for summary judgment has acted in bad faith or primarily for the purpose of delay. 27 Given the potentially significant cost consequences of an unsuccessful summary judgment motion, there is a concern that rule 20 is not being used in cases where it ought to be.
In New Brunswick, the Northwest Territories, Nunavut and Prince Edward Island, there is a presumption of substantial indemnity costs against an unsuccessful moving party similar to Ontario's. 28 No other Canadian jurisdiction has adopted a similar presumption.
Many of those consulted thought the presumption of substantial indemnity costs should be eliminated. It was seen to be a key deterrent to bringing a summary judgment motion. At the Advocates' Society Policy Forum the presumption of substantial indemnity costs was seen to be unfair. 29
I think that there is merit in making it clear within rule 20 that substantial indemnity costs may be awarded by the court where it is of the opinion that any party has acted unreasonably in bringing or responding to a summary judgment motion, or where a party has acted in bad faith or for the purpose of delay. In light of the significant costs associated with summary judgment motions, there ought to be some clear deterrent within rule 20 itself for those who wish to use summary judgment as a litigation tactic or who wish to use rule 20 to unduly delay the final resolution of the case. However, substantial indemnity costs should not be presumptive. Motion judges, I think, will have little difficulty in deciding whether substantial indemnity costs are appropriate in the circumstances of the motion.
In addition to summary judgment and the mini-trial option previously discussed, a summary trial rule such as British Columbia's Rule 18A may provide an effective tool for the final disposition of certain cases on affidavit and documentary evidence alone. A significant number of actions in that province are tried under that rule. Unless the Civil Rules Committee concludes otherwise, I see no valid reason why Ontario should not import the text of British Columbia's rule 18A.
British Columbia's rule 18A allows a court to grant judgment in cases where there is an issue on the merits “unless the court is unable, on the whole of the evidence before it, to find the facts necessary to decide the issues of fact or law” or unless “the court is of the opinion that it would be unjust to decide the issues on the application.” 30 Affidavit and other documentary evidence, including evidence taken on an examination for discovery and written statements of an expert's opinion, may be used. The court may, at a preliminary hearing for directions, order cross-examination on affidavit evidence “either before the court or before another person as the court directs.” 31
If the court is unable to grant judgment at the summary trial on the affidavit and documentary evidence alone, it may make a variety of orders to expedite the trial of the case (e.g., interlocutory applications to be brought within a fixed time, agreed statement of facts to be filed within a fixed time, a discovery plan with fixed timelines, and fixed duration of examinations for discovery). 32 The court also has the power to adjourn or dismiss the summary trial application, before or at the hearing of the application, where “the issues raised are not suitable for disposition under this rule” or “the summary trial will not assist the efficient resolution of the action.” 33
British Columbia's rule 18A has been very well received and is said to be successful. As noted by one commentator in British Columbia, “[N]ot since the introduction of the summary trial under rule 18A has such a versatile and useful tool been placed in the hands of litigators wishing to have a civil dispute of modest dimensions adjudicated in a speedy, comparatively inexpensive, yet just manner….When Rule 18A was first introduced, no one could have imagined the way, and the extent to which, it would change (for the good) the practice of civil litigation in the province.” 34 Indeed, the British Columbia rule is being employed in 60% of cases; however, a similar rule in Alberta is not yet widely used. 35
Rule 18A was not an immediate success in British Columbia. When it was first introduced, it was designed to provide a motion judge with a mechanism to decide disputed questions of fact that would otherwise be an impediment to a successful summary judgment motion. Initially, there were a large number of rule 18A applications, which created delays. However, it now appears the benefits of the rule are being felt and there are no calls to reform it. 36
Alberta also has a summary trial procedure, 37 which is largely based on British Columbia's rule 18A. Prince Edward Island and Saskatchewan have a summary trial procedure, although it is limited to actions governed by their simplified procedure as in Ontario under rule 76. 38 Manitoba does not have an express summary trial rule. However, where the court finds a genuine issue for trial on a summary judgment motion, the judge may, in his or her discretion, conduct a trial on affidavit evidence and grant judgment “unless the judge is unable on the whole of the evidence before the court on the motion to find the facts necessary to decide the questions of fact or law, or it would be unjust to decide the issues on the motion.” 39
Summary trial mechanisms were recommended by the CBA Systems of Civil Justice Task Force and commented on with approval at the Advocates' Society's Policy Forum in March 2006. The benefits of adopting a new summary trial rule include:
Rule 21 provides a further mechanism to summarily dispose of an action either by having questions of law determined prior to trial or by striking out a pleading on the basis that it discloses no reasonable cause of action or defence. The test on a rule 21 motion is whether it is “plain and obvious” that the claim cannot succeed.
Two concerns were identified with respect to the operation of rule 21. The first is the apparent tendency of the court to repeatedly grant leave to amend pleadings, rather than to strike them in appropriate cases. The second is the “plain and obvious” test. Some suggested that this test be amended to make it easier for the court to strike pleadings at an early stage.
I am not persuaded that a change to the “plain and obvious” test under rule 21 is required. Rule 21 serves a different purpose than rule 20: its objective is to eliminate at the outset those cases where the claim or defence will fail because it discloses no recognized or accurately pleaded cause of action or defence. From an access to justice perspective, I am concerned about making it too easy to dispose of cases too early in the litigation process through a more lenient test.
The practical problem with rule 21 motions, it was said, is that the court tends to regularly permit litigants to amend pleadings, instead of striking the claim or defence. This may happen after repeated motions to strike before several judicial officials. In my view the solution is, where practicable, to have the same judicial officer who grants leave to amend a pleading preside over any subsequent rule 21 motions involving the same pleading.