SUMMARY JUDGMENT REDUX1: The first three months under the “new” rules Ian F. Leach2 Partner, Lerners LLP A. INTRODUCTION - CHANGES TO RULE 20 In his 2007 report to the Ministry of the Attorney General, completed in conjunction with Ontario’s Civil Justice Reform Project, former Associate Chief Justice Osborne reviewed and confirmed three principal concerns about the province’s existing rule governing motions for summary judgment: 1. the rule was not working as intended; 2. the rule was not sufficiently flexible in terms of disposition; and 3. the prescribed cost consequences of failure were seen as an excessive deterrent. On the first point, Justice Osborne concluded that the existing rule was not working effectively, primarily because of appellate authority imposing significant constraints on its application. In particular, a motion judge was not to weigh conflicting evidence, conduct a “mini-trial”, draw inferences, or evaluate credibility. In the result, it was all too easy for a responding party to derail and block a motion for summary judgment, (e.g., by putting facts in dispute). On the second point, Justice Osborne agreed that the existing “binary” possibility of outcomes, (granting or dismissal of the motion, with the possibility of placement on a “speedy trial” list that was rarely if ever used), was far from adequate. On the third point, Justice Osborne accepted that the cost sanctions for unsuccessful summary judgment motions, (found in few other Canadian jurisdictions), were indeed seen as a key deterrent to the bringing of such motions; a deterrent compounded by the other challenges outlined above. After further consultation, and review of the report’s conclusions and recommendations by the Civil Rules Committee, Ontario’s Rules of Civil Procedure were amended on December 11, 20083, with further amendments made on October 16, 20094. The relevant regulations came into force on January 1, 2010.5 Consistent with Justice Osborne’s recommendations, rule 20, governing summary judgment motions, was amended in four principal ways: 1 This paper was prepared for presentation and discussion at the 2010 session of the annual “Straight From the Bench” seminar program organized by the Middlesex Law Association, held April 22, 2010, in London, Ontario. 2 Ian F. Leach, B.A. (Toron.), LL.B. (Reg.), LL.M. (Cantab.), B.C.L. (Oxon.), is a partner with Lerners LLP, where he is a member of the Commercial Litigation, Insurance Defence and Class Action practice groups. This paper was prepared with helpful and much appreciated research assistance provided by Leanne Zawadski, an articling student with Lerners LLP in 2009-2010. 3 O.Reg.438/08. 4 O.Reg.394/09. 5 See O.Reg. 438/08, s.68(1). Transitional issues relating specifically to summary judgment motions are addressed below. Page 2 1. The test for summary judgment was slightly reworded. The previous threshold for summary judgment, (“no genuine issue for trial”), was replaced by a new one: “no genuine issue requiring trial”6. 2. Constraints imposed by judicial authorities on application of the test were expressly overruled/removed. Judges presiding at a summary judgment motion now are to consider the evidence submitted by the parties and, “unless it is in the interest of justice for such powers to be exercised only at trial”, the judge may weigh the evidence, evaluate the credibility of deponents, and draw any reasonable inference from the evidence.7 3. The possible treatments and dispositions of a summary judgment motion were expanded considerably. For the purpose of weighing evidence, evaluating credibility or drawing inferences, a judge hearing a summary judgment motion may now “order that oral evidence be presented by one or more parties, with or without time limits on its presentation”.8 Moreover, where summary judgment is refused or granted only in part, the judge may now “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”, subject to a lengthy list of possible directions and terms including the following: directions regarding affidavit of documents delivery; the imposition of a deadline for any motions; the filing of an agreed statement of facts not in dispute; court established discovery plans scheduling and limiting the duration and scope of oral examinations; the delivery of written anticipated witness evidence summaries; the entering of trial evidence by affidavits and/or cross-examination on transcripts; the imposition of time limits on oral evidence at trial; directions compelling the meeting of opposing experts on a without prejudice basis; 6 New rule 20.04(2)(a). 7 New rule 20.04(2.1). 8 New rule 20.04(2.2), expressly described in the rule sub-heading as a “Mini-trial”. Page 3 the delivery of opening statement summaries; the imposition of fixed appearance and trial dates; and orders for payments into court and/or the posting of security for costs.9 4. The cost deterrent was reduced. The former presumption favouring an award of substantial indemnity costs in the event of failure on a summary judgment motion has been removed. The new rule levels the playing field for all, and prescribes that the court may fix and order payment of costs of a motion for summary judgment by a party on a substantial indemnity basis if the party either: acted unreasonably by making or responding to the motion; or acted in bad faith for the purposes of delay. At the time of the Osborne Report, the bar reported and Ministry statistics confirmed that few summary judgment motions were being brought in Ontario. Collectively, the recommendations and amendments were intended to breathe new life into rule 20, and restore its intended operation as a mechanism to “weed out”, at an early stage, claims and defences that have no chance of success; a mechanism the Supreme Court of Canada has described as “essential to the proper operation of the justice system”.10 Whether or not the amendments to rule 20 will have that effect remains to be seen, but a review of available decisions rendered during the first three months of the “new” rule suggests that change is underway. B. JUDICIAL CONSIDERATION OF THE “NEW” RULE – STATISTICS & OVERVIEW Efforts were made to locate and review all available on-line Ontario decisions, at first instance and on appeal, dealing with or at least touching upon summary judgment following amendment of the rule. In the result: Attached to this paper as “Schedule A” is a table identifying and describing 42 relevant first instance decisions. With one exception, (Onex Corporation v. American Home Assurance11, discussed in more detail below), the decisions were rendered between 9 New rule 20.05(2). 10 Canada (Attorney General) v. Lameman,  1 S.C.R. 372, at para. 10. 11 2009 CanLII 72052. Page 4 formal introduction of the rule amendments on January 1, 2010, and April 1, 2010; i.e., the first three months of life under the new Rules of Civil Procedure12. Attached to this paper as “Schedule B” is a table identifying and describing 13 Court of Appeal decisions from the same period which address summary judgment. As far as the first instance decisions are concerned, many frankly do not offer much general guidance or insight into operation of the new summary judgment regime. In particular, they often contain little more than a recitation of the amended rule provisions before the motions judge engages in a fact- specific review of the underlying circumstances and determination as to whether those present a “genuine issue requiring a trial”. To the extent the decisions address matters of more general application and significance, these are discussed below. The Court of Appeal decisions are listed for the sake of completeness, but really offer no guidance in terms of interpreting and applying the amended summary judgment rule per se, as all of the decisions effectively deal with the law as it stood prior to the amendments. This is inherent in the timing of this case review and the role of the appellate court, which concentrates on whether a motions judge erred when rendering his or her first instance decision. The simple reality is that the Court of Appeal has not yet had an opportunity to consider an appeal from any summary judgment decision rendered when the amended rules were in force. C. TRANSITIONAL ISSUES One of the first issues to surface in relation to the new summary judgment rules concerned the timing of their application. In that regard: litigants and the judiciary all seem to agree that the pre-amendment rules should govern summary judgment motions brought and heard before January 1, 2010, even if the court’s decision is released at some point thereafter;13 and 12 Unfortunately, at the time of writing, comparative data is not available to suggest whether this represents a numerical increase or decrease in the number of summary judgment motions being heard and decided by the Superior Court relative to life under the “old” rules. However, given the time it often takes to bring a summary judgment motion to the point of hearing, (after the full exchange of records, completion of cross-examinations, satisfaction of undertakings, and scheduling of a special appointment), numerical data is likely to be inconclusive or misleading for some time to come. In particular, many of the decisions within this period relate to motions initiated under the “old” rules, while parties who may have deliberately delayed bringing summary judgment motions until after the rule amendments may not have their motions decided for many months to come. Only passage of time, and a more extended overview of post-amendment decisions, will indicate whether more summary judgment motions are being brought under the amended Rules of Civil Procedure. 13 For example, in Hawkins v. Attorney General, 2010 ONSC 303, the summary judgment motion was heard on December 21 and 22, 2009; the court’s decision, released January 14, 2010, makes no mention of the Rule 20 amendments and expressly refers to pre-amendment authority confirming that a motions judge on a summary judgment motion will never assess the credibility of witnesses, nor resolve an issue of fact. Similarly, in Sun Life Assurance Company of Canada v. Metropolitan Life Insurance Company, 2010 ONSC 558, the summary judgment motion was heard on December 16 and 17, 2010; the court’s decision, released January 22, 2010, makes no mention of the Rule 20 amendments and apparently applies the old pre-amendment test. See also 1057330 Ontario Inc. v. Melrose Properties Inc., 2010 ONSC 483, (where the motion was brought and heard before the rule amendments, on Page 5 to date, there apparently has been no suggestion that the amended provisions of rule 20 will not apply to all summary judgment motions brought, argued and decided after January 1, 2010. To the extent there has been any dispute about transitional application of the rule 20 amendments, it has been confined to “twilight” situations where summary judgment motions were brought prior to January 1, 2010, but not heard until some time thereafter. In particular, litigants who likely would have benefited from application of the more restrictive pre- amendment approach to summary judgment, (especially those litigants who invested considerable time and expense resisting the summary judgment motion when brought under the “old” rules), have tried to persuade courts that summary judgment motions brought before the amendments should be “grandfathered” under the pre-amendment rules and dealt with accordingly. Such efforts have not been successful, and courts repeatedly and consistently now have held that, if a motion for summary judgment under rule 20 was filed before the rule changes took effect on January 1, 2010, but not heard until some time thereafter, the matter is to be heard and decided under the new rule rather that the old. November 2, 2009, but the court’s decision was not released until January 25, 2010), at para. 30: “This motion for summary judgment was brought prior to January 1, 2010, and therefore the amendments to Rule 20 which took place on that date are not applicable to this motion.” See also Hurley Corporation v. Canadian IPG Corporation, 2010 ONSC 681, (brought before the rule amendments and argued on December 30, 2009, although the court’s decision was not released until January 29, 2010), at para. 46: “On January 1 of this year, only two days after I heard the motion, substantial changes were made to Rule 20 to give the court much greater latitude on summary judgment motions to deal with evidence and craft appropriate remedies. This summary judgment motion might be the last one to be decided under the old rule. Counsel did not ask me to consider any of the new provisions about to come into force.” In Greenhalgh v. Vaillancourt, 2010 ONSC 552, the court released its decision on a summary judgment motion argued on October 5, 2009; no mention was made of the rule amendments, and the court applied the pre- amendment “genuine issue for trial” test. Consider also Daimler Chrysler v. 1377738 Ontario Inc., 2010 ONSC 931, (in which the court, on February 9, 2010, released its ruling on written cost submissions filed in relation to a summary judgment motion apparently heard before January 1, 2010), at paragraphs 5 and 13: “I am aware that the new section [Rule 20.06] allows more latitude then (sic) before. I intend to use the old rule and there was no mention of retroactivity when the rules were made. See the decision of Justice Belobaba in Onex Corporation v. American Home Assurance,  O.J. No. 5526. He also felt that the rule change is not retroactive. … Therefore the plaintiff will have costs award (sic) of $19,793.80. This will be paid forthwith in accordance with the old Rule 20.06(1).” (In fact, Justice Belobaba expressly opined that changes to cost rules are procedural changes having retrospective application. See Onex Corporation v. American Home Assurance, supra, at para. 23.) In Hosseini v. Salerno, 2010 ONSC 503, the court released a decision on February 19, 2010, in relation to a summary judgment motion heard on July 28, 2009, and made no mention whatsoever of the amended rules; only the pre-amendment “genuine issue for trial” test was considered and applied. Finally, see also Chidley-Hill v. Daw, 2010 ONSC 1576, released March 16, 2010, at para.12: “This summary judgment motion was argued before me on December 16, 2009, before the coming into force of major amendments to Rule 20 of the Rules of Civil Procedure on January 1, 2010. The only reason a decision was not rendered before the New Year was the constraints of my calendar. Accordingly, I conclude that this motion falls to be decided in accordance with the jurisprudence as it existed under the ‘Old Rule 20’”. (As noted and discussed in more detail below, the motions judge in the Chidley-Hill case nevertheless felt that the timing of his decision’s release permitted exercise of the court’s new case management powers under the amended version of Rule 20.05.) One possible exception to this practice, (i.e., of deciding motions heard prior to 2010 under the “old rule 20”), may be Skankowsky-Day v. Estate of Isaac, 2010 ONSC 121. The summary judgment motion in that case had been brought and argued, but not decided, before January 1, 2010. In her decision, released January 8, 2010, Justice Healey nevertheless makes reference to the recent rule amendments expanding the scope of the motion judge’ powers to assess credibility, weigh conflicting evidence and make findings on controverted facts. Page 6 This transition issue self-evidently will become less important with the passage of time, as summary judgment motions commenced before 2010 progressively all make their way to a hearing. However, to explain the court’s reasoning, which may be relevant to other issues arising from transitional application of the amended Rules of Civil Procedure to ongoing litigation, and to underscore the apparently “settled” nature of this particular question, the relevant decisions are as follows: 1. In Onex Corporation v. American Home Assurance14, the plaintiffs brought a motion for summary judgment requiring the defendant insurers to provide indemnification for more than $30 million in legal costs incurred to defend proceedings brought in the United States after the defendant insurers denied coverage. The motion was filed in February, 2009, but, after the completion of cross-examinations on affidavit material, the motion was not likely to be heard until early 2010 after the new rule changes came into effect. The defendant insurers, who were resisting the summary judgment motion, brought a motion prior to 2010 for directions clarifying and confirming that the existing pre- amendment summary judgment rules would be applied to the motion, when heard. Justice Belobaba disagreed, rejecting numerous arguments put forward by the defendants. In particular: Contrary to the suggestion of the defendants, the case law was clear that “no one has a vested right in any particular form of procedure”. The only “right” one has is to have the matter disposed of according to the procedure at the time of the disposition. As a general rule, procedural amendments therefore apply retrospectively; i.e., they take immediate effect and apply even to matters that were commenced before the new procedure came into force, unless the contrary is expressed in the legislation. These broad common law principles were reinforced by ss. 52(3) and (4) of the Legislation Act15. In relation to the (then) pending amendments, the legislature had made specific “transitional” provisions for other changes to the rules, (e.g., relating to mediation requirements, discovery plans and case management), but had refrained from doing so in relation to amendment of the summary judgment rules. Nor had the legislature included any general transitional rule similar to that accompanying the major rule amendments in 1984, (whereby the court was given general authority to order application of the pre-amendment rules to existing proceedings when that was considered just). Justice Belobaba felt this was deliberate: “In my view, if the legislature had intended that the old rule 20 would continue to apply to summary judgment motions filed before 2010 or that a general “transitional provision” was required, it could have said so. It chose not to do this. It follows, therefore, that the new summary judgment procedure is intended to take 14 2009 CanLII 72052. Although the decision was released on December 21, 2009, prior to the rule amendments coming into force, the court was expressly asked for directions clarifying and confirming the rules that would apply to the pending summary judgment motion after January 1, 2010. The ruling therefore is included in this discussion. 15 2006 S.O. 2006, c.21, sched. F. Page 7 immediate effect as of January 1, 2010 and apply to all rule 20 matters before the court, whenever the motion was filed.”16 The defendants’ reliance on case law relating to the 1984 rule reforms was misplaced. In each of those cases, whenever the court intervened to remedy a perceived unfairness and direct that the “old rule” would apply, it did so pursuant to the express legislative direction set out in the general transitional provisions and authority enacted by the legislature to deal with implementation of the 1984 rules. No such transitional provision appears in the 2010 amendments. Neither rule 1.04(1) nor rule 2.03 could or should be interpreted as something akin to general transitional provisions, providing broad judicial discretion to direct the application of pre-amendment rules in the interest of justice. Doing so would not be consistent with the provisions or practice under those rules. Nor would it make sense to apply such rules “in the interest of justice” to negate application of provisions like new rules 20.04(2.1) or 20.05(2), which themselves contained provisions permitting their deferred application in the interests of justice.17 Submissions that application of the new rules would be unjust had no merit in any event, as the defendants were unable to identify any prejudice or specific examples of unfairness, (e.g., anything they would have done differently in preparing for the summary judgment motion), other than the perceived unfairness of “changing the rules in the middle of the game”. Justice Belobaba found such arguments unpersuasive: “Clearly, the new rule 20 expands the power of the motions judge. Motions filed in 2009 but filed in 2010 will be subject to the new procedures and this means that for many litigants, the rules will have changed mid-game. But this need not result in any unfairness. And, if it does, the motions judge can direct the matter to trial if it is in the interests of justice to do so. In most cases, the new powers provided by the new rule 20 will be utilized by the motions judge and the evidentiary and credibility issues will be determined fairly quickly without the need for a long and expensive trial. I see no unfairness in having the matter resolved faster and more efficiently – for the mutual benefit of plaintiffs and defendants alike.”18 Justice Belobaba expressly rejected the defendants’ suggestion that they would be prejudiced by the change in the summary judgment costs rule; i.e., removing the presumption of substantial indemnity costs in the event of their success. Changes to cost rules are procedural changes and have retrospective application, and mere preservation of the old presumption would not, in itself 16 Ibid., at para. 8. On their face, Justice Belobaba’s comments also would extend to summary judgment matters heard but not yet decided as of January 1, 2010. As noted above, however, litigants and the courts have not approached such matters in that way. 17 Ibid., at para. 17: “The motions judge is not required to make use of these additional powers. The provision is not mandatory but permissive. The judge can decide “in the interests of justice” that such powers should be exercised only at trial.” 18 Ibid., at para. 21. Page 8 warrant any special order to grandfather application of the “old rule” in the interests of justice. 2. In Langille v. Toronto19, the defendant brought a motion for summary judgment prior to the rules being amended and the parties prepared accordingly, but the motion did not come on for hearing until January 11, 2010. The parties and the court apparently all agreed, without discussion or argument, that the new rule applied.20 3. In BCP v. Silva21, the plaintiff bank brought its motion for summary judgment prior to the rule amendments, but it was not heard until January 7, 2010. The court applied the amended rule 20 without comment or debate, expressly relying on its power to weigh evidence, evaluate credibility and draw reasonable inferences.22 4. In Brown’s Cleaners and Tailors Ltd. v. Omers Reality Corp.23 the defendant brought its motion for summary judgment on January 15, 2009, and the motion was then adjourned four times; e.g., to allow for the filing of responding material, cross-examination, and the scheduling of a special appointment hearing. In the result, the motion came on for hearing on January 15, 2010, (one year after its initial filing), and the plaintiff argued that, given the history of the motion, the more stringent provisions of the old summary judgment rule should be applied. Justice Valen disagreed. In doing so, he expressly agreed with the conclusion of Justice Belobaba in Onex Corporation v. American Home Assurance, supra, and held that “the revisions to the summary judgment procedure set out in rule 20 should apply to all motions brought under that rule regardless of when the motion was filed.”24 5. In Noble v. York University Foundation25 the specific rule transition issue before the court did not concern summary judgment but changes to the “relevance” test governing questions on a discovery examination. In particular, between the bringing of the plaintiff’s motion to compel a defendant’s re-attendance to answer questions on oral discovery examination and hearing of the motion, the rules had been amended, replacing the previously applicable “semblance of relevance” test. In deciding that the new amended rules must be applied to determine the motion, notwithstanding the date it was filed, the court expressly cited and endorsed the approach of Justice Belobaba in Onex Corporation v. American Home Assurance, supra. 6. In Zwaigenbaum v. Scher26, the defendant’s motion for summary judgment had been brought on November 21, 2009, but was not heard until January 11, 2010. Neither the 19 2010 ONSC 443. 20 Ibid, at para. 5: “This motion is governed by the recently amended r.20 of the Rules of Civil Procedure. Although in their factums filed on this motion, both parties relied on case law decided under the rule in effect prior to January 1, 2010, they acknowledge that it is the new rule that applies.” 21 2010 ONSC 392. 22 Ibid, at para. 2. 23 2010 ONSC 1073. 24 Ibid, at para. 21. 25 2010 ONSC 399. 26 2010 ONSC 559. Page 9 parties nor the court seem to have raised or considered any transitional issues. The court instead simply cited the new amended test for summary judgment, (i.e., that there is no genuine issue requiring a trial), and made reference to the court now having authority to weigh evidence, evaluate credibility and draw any reasonable inference from the evidence, “which greatly expands their role on a summary judgment motion”.27 7. In Zurba v. Lakeridge Health Corp.28, the defendant physician moved for summary judgment prior to amendment of the rules, but the motion was not heard until January 7, 2010. The court expressly noted the parties agreement, “since this motion is being argued after January 1, 2010, that rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as amended effective January 1, 2010 applies.”29 8. In Aylmer v. Her Majesty the Queen and The Attorney General of Canada30 the defendant Attorney General brought a motion, served in 2009, for summary judgment dismissing the plaintiff’s claim. It then became clear that the motion would not be heard until early 2010. The plaintiff moved for directions, asking the court to clarify and confirm that it would apply the summary judgment rule in effect when the motion was commenced, rather than the new rule 20 which came into effect on January 1, 2010. Justice Conway disagreed. She noted that the identical issue had been raised in Onex Corporation v. American Home Assurance, supra, and expressly adopted both the analysis and conclusions of Justice Belobaba in that case31. However, Her Honour then expanded on that analysis considerably, in order to address the parties’ arguments in greater detail. In particular: Having regard to their substance and effect, the summary judgment provisions were procedural provisions, and any changes to them were purely procedural enactments. The changes had no impact on the substance of the action or the rights of the parties in the action itself. The amendments had simply expanded the court’s ability to carry out the objective of determining which claims, in the court’s opinion, should not proceed to trial but be disposed of at an earlier stage, thereby conserving the resources of the court and the parties. In Justice Conway’s view: “[T]his is all part of the process of conducting litigation in Ontario. A litigant can only get to the trial stage if it goes through this process. This includes overcoming a summary judgment motion which may be brought by the opposing party. Summary judgment is a step along the way to trial; it is part of proving and enforcing the litigant’s case.”32 As procedural enactments, the summary judgment rule amendments were presumed to apply immediately, unless a contrary intention was evinced from 27 Ibid., at paragraphs 1 and 12. 28 2010 ONSC 318. 29 Ibid., at para. 17. 30 2010 ONSC 649. 31 Ibid., at paragraphs 4 and 5. Justice Molloy noted advice from counsel appearing before her that leave to appeal to the Divisional Court was being sought in Onex Corporation v. American Home Assurance, supra. However, subsequent inquiries made of counsel involved in the Onex litigation indicate that such leave was not sought. 32 Ibid., at para. 24. Page 10 the legislation. No such contrary intention had been expressed in the legislation. Nor were there any transitional rules applicable to rule 20 so as to rebut the presumption of immediate effect. The new rule 20 therefore applies as of January 1, 2010, regardless of when a notice of motion may have been filed.33 There was no merit in or support for the plaintiff’s submission that it had a “vested right” in the summary judgment rule and test that existed when the notice of motion was filed. The case law was clear that “no one has a vested right in procedure”. In pursuing a case to trial, a litigant only had a right “to have its case disposed of in accordance with the rules and procedures in force at the time of its disposition”. As far as summary judgment was concerned, “[w]hatever challenges the new rule 20 may impose on a party in proving that its case merits a trial, it has no right to apply the rule from an earlier date”. In particular, the test on summary judgment was not a “right” that “belongs to” a responding party. Summary judgment is the mechanism by which the court determines whether the case should proceed to trial, and accordingly cannot be a right of the litigants.34 There was no room for the exercise of any inherent court jurisdiction, (i.e., to control its own process), so as to apply the old rule 20 rule in cases where that was thought to be appropriate. The legislature had spoken clearly, including specific transition provisions where it intended pre-amendment rules to apply and omitting them where it did not intend for that to happen. There accordingly was no “gap” in the statutory enactment permitting exercise of the court’s inherent jurisdiction and discretion. Nor would it have been appropriate to do so, had such jurisdiction existed. As in the Onex Corporation case, the responding party could not identify any prejudice apart from that resulting from the rule amendments per se.35 9. In Kapy v. Hwang36, a defendant moved for summary judgment and his motion, initially returnable on October 22, 2009, did not come on for hearing until February 3, 2010. Justice Lauwers began his analysis with a simple threshold statement, (without citing authority or giving the matter further consideration), that “since this motion was argued after January 1, 2010, rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended effective January 1, 2010 applies”.37 10. In Cockshutt v. Computer Facility Services38, the plaintiff moved for partial summary judgment, and his motion was filed and scheduled to be heard prior to the amendments to rule 20 coming into force. However, due to “unforeseen events”, the motion then was adjourned to February 11, 2010. Expressly citing the court’s decisions in Onex Corporation v. American Home Assurance, supra, Brown’s Cleaners and Tailors Ltd. v. 33 Ibid., at paragraphs 27 and 28. 34 Ibid., at paragraphs 32, 33 and 37. 35 Ibid., at paragraphs 39-41. 36 2010 ONSC 1597. 37 Ibid., at para.17. 38 2010 ONSC 1789. Page 11 Omers Realty Corp., supra, and Aylmer Meat Packers Inc. v. Ontario, supra, Justice Molloy regarded it as settled law that the amended summary judgment rules had to be applied: “The amendments to the rule came into force on January 1, 2010 and are applicable to all motions heard commencing on that date. The timing of when the materials were delivered, or when it was originally expected to be heard are not the determinative factors. Accordingly, it is the new rule that governs.”39 Except in what must be increasingly rare instances of matters argued before January 1, 2010, but not yet decided, it seems clear that all further summary judgment motions will be determined by application of the amended rules. D. THE “NEW” RULE: SUBSTANTIVE INTERPRETATION AND APPLICATION Most of the decisions applying the “new” summary judgment rule offer little in the way of general guidance, insofar as they contain little more than mere recitation of the new rule provisions before engaging in a largely fact-specific determination that there is or is not a genuine issue requiring a trial.40 The following decisions, however, provide insights of more widespread application: 1. Healey v. Lakeridge Health Corporation, 2010 ONSC 725. In this case, providing one of the first detailed considerations of the new summary judgment provisions, Justice Perell dismissed plaintiff motions for summary judgment in a class action concerning a tuberculosis outbreak at a public hospital, and granted defence summary judgment motions seeking dismissal of various class claims. In doing so, Justice Perell rejected submissions that he lacked jurisdiction to grant the relief requested, and offered the following general observations about the new summary judgment rule: Semantically, there is not much difference between “no genuine issue for trial” and “no genuine issue requiring a trial”. However, as a matter of statutory interpretation, the court had to take a purposive approach in giving effect to the change. In particular, courts had to apply the “new” rule bearing in mind the problems the amendments were designed to remedy; i.e., an old rule that was too strict such that the summary judgment rule was not achieving its purposes, and case law that had impaired utility of the rule by preventing a motions judge from assessing credibility, weighing evidence, or finding facts. A purposive approach required courts to interpret the new rule to make summary judgment more readily available, and recognize that the court’s expanded forensic powers 39 Ibid., at para. 4. 40 See, for example the following cases: Langille v. Toronto, supra; BCP Bank Canada v. Silva, supra; Brown’s Cleaners and Tailors Ltd. v. Omers Realty Corp., supra; Zurba v. Lakeridge Health Corp., supra; Black v. Slo-Pitch National Softball Inc., 2010 ONSC 1837; and 1526183 Ontario Ltd. v. Grant Equipment Corp., supra. Page 12 were such that issues otherwise appropriate for trial may no longer actually require a trial for their resolution.41 Case law decided under the “old” rule remained relevant; e.g., Justice Perell cited the leading summary judgment decisions in Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545 (C.A.), and Canada v. Lameman,  S.C.R. 372, in support of his views concerning the purposive approach to be taken. However, such case law also needed to be read with care, and with some necessary modifications in mind. In particular, rule 20.04(2.1) was a “statutory reversal” of the case law that had prohibited a motions judge from assessing credibility, weighing evidence, finding facts or drawing inferences. Similarly, it was necessary to revisit the former case law giving preference to the trial as the means for a litigant to have his or her day in court.42 Under the new summary judgment rule, the determinant will not be whether a litigant wants a trial but whether a litigant needs the “forensic machinery of a trial” to obtain substantive and procedural justice. In practical terms, the moving party must provide a level of proof that demonstrates, (bearing in mind the court’s new powers to weigh evidence, evaluate credibility and draw inferences), “that a trial is unnecessary to truly, fairly, and justly resolve the issues”. (Justice Perell acknowledged that this was “not a bright line test like the one that existed before”, where a judge would know that there was a genuine issue for trial because he or she could not decide the matter without weighing evidence, etc., but “the certainty of the old rule was intellectually dishonest” because weighing evidence is unavoidable, and occurred in the very act of determining whether it needed to be weighed.)43 Factors favouring a finding that a trial is not required include the following: legal nature of the issues, (as their determination is often done without needing a trial); an extensive record that goes well beyond the pleadings stage, providing a context of evidence and a real factual foundation beyond mere allegations; and the provision of extended time for argument.44 2. Cuthbert v. TD Canada Trust, 2010 ONSC 830. The plaintiff, defendant and third party all brought motions for summary judgment in this case, which involved monies obtained from one bank by fraud being used to repay loans to allegedly innocent third parties. In the course of ruling on the motions, Justice Karakatsanis offered the following general observations concerning the amended summary judgment rules: 41 Healey v. Lakeridge Health Corporation, supra, at paragraphs 20 and 23. 42 Ibid., at paragraphs 16-17, 22 and 27. 43 Ibid., at paragraphs 28, 30 and 32. 44 Ibid., at paragraphs 35 to 38. Page 13 The rule changes permit “a more meaningful review of the paper record” and expressly overrule previous jurisprudence that prevented a motions judge from making evidentiary determinations.45 However, the summary judgment decision or test – of whether there is a genuine issue of material fact that requires a trial – has not changed, and the earlier case law, (e.g., Irving Ungerman Ltd. v. Galanis, supra), remains relevant. It must be clear a trial is unnecessary. The new powers simply provide the judge with “more tools” to take the required “hard look” at the evidence and determine whether it raises a genuine issue requiring a trial. It was still not the role of the motions judge to make findings of fact for the purpose of deciding the action on the basis of the evidence presented on a motion for summary judgment. “Although a summary judgment motion may, if the motions judge directs, resemble a summary trial, the test and the decision are different.”46 The new rule similarly has not changed the relative burdens of the parties; i.e., the moving party must prove that there is no genuine issue for trial requiring a trial for resolution, and only then does the burden shift to the responding party to show that its claim or defence has a real chance of success. Consistent with the earlier jurisprudence, (which again remains relevant), each side must “put its best foot forward”, and the motions judge is entitled to assume that the record contains all the evidence the parties would present if there is a trial.47 Justice Karakatsanis repeated the above observations almost verbatim in two subsequent summary judgment decisions: New Solutions Extrusion Corporation v. Gauthier, 2010 ONSC 1037, at paragraphs 9 through 12, and Hino Motors Canada Ltd. v. Kell, 2010 ONSC 1329, at paragraphs 6 through 9. 3. Abrams Estate v. Air Canada #1, 2010 ONSC 1280. Prior to hearing a motion brought by the defendants for summary judgment, Justice Matlow confirmed that motions for summary judgment may now be brought before a judge or a master at the option of the moving party. (Justice Matlow held that an earlier decision by him requiring summary judgment motions to be brought before a master rather than a judge, subject to certain exceptions, no longer applied in light of the rule amendments. In particular, the new powers conferred by the rule were not ones reasonably expected to be exercised by a judge hearing a motion adjourned to him or her by a master, nor conferred on judges only in places where a master is not readily available.) 4. Vella v. Pavao, 2010 ONSC 1543. 45 Cuthbert v. TD Canada Trust, supra, at para. 10. 46 Ibid., at para. 11. 47 Ibid., at paragraphs 12 and 13. Page 14 In deciding a motion by the plaintiff for partial summary judgment, Justice Allen noted that the wording of the test had changed slightly under the amended rules, but the “well known” judicial interpretations of the test remained relevant. In particular, in order to resist summary judgment, the responding party must still show his or her claim is one with a real chance of success, and cannot simply rest on his or her pleadings but must demonstrate through affidavit or other evidence specific facts establishing a genuine issue. Similarly, the court still expects a responding party to “lead trump or risk losing”, and presumes in trying to avoid summary judgment that the responding party has put his or her “best foot forward”.48 5. J.R. v. Vickery, 2010 ONSC 1446. In ruling on defence motions for summary judgment, (on the ground that the plaintiff’s claims against the various police defendants were statute barred by applicable limitation periods), Justice Morrisette noted that the rule had been modified to permit assessment of credibility, weighing of evidence and drawing of reasonable factual inferences. However, the “often quoted test” articulated in Irving Ungerman Ltd. v. Galanis, supra, (i.e., whether there is a genuine issue of material fact that requires a trial for its resolution), “remains the proper test for summary judgment”, and the judge “is still required to answer the ultimate question of whether a trial is required to resolve a genuine issue”.49 6. MCAP Leasing v. Lind Furniture, 2010 ONSC 1085. In applying the amended summary judgment rules, Justice Price similarly made reference to pre-amendment case law, including Irving Ungerman Ltd. v. Galanis, supra, and opined that, as resolution of credibility issues is enhanced by observing witnesses, it may be more consistent with the interest of justice for such powers to be exercised at trial when numerous witnesses will be required for the purpose.50 7. Kapy v. Hwang, 2010 ONSC 1597. In ruling on a defence motion for summary judgment under the amended rules, Justice Lauwers noted that the amendments “serve to qualify somewhat” the earlier authorities prohibiting a motions judge from assessing credibility, weighing evidence or finding facts. He nevertheless looked to and relied upon pre-amendment authorities concerning the court’s obligation to take a “hard look at the merits of the action”, the onus on the parties, 48 Vella v. Pavao, supra, at paragraphs 7 and 8. Justice Allen cites many of the leading authorities applicable to summary judgment motions in Ontario prior to the rule amendments; e.g., Dawson v. Rexcraft Storage and Warehouse Inc.,  O.J. No. 3240 (C.A.), Guarantee Co. of North America v. Gordon Capital Corp.,  3 S.C.R. 423, Lang v. Kligerman,  O.J. No. 3708 (C.A.), and 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.). 49 J.R. v. Vickery, supra, at paragraphs 8 and 9. Note, however, that Justice Morissette based her conclusion on “the recent Court of Appeal decision in Aronowicz v. Emtwo Properties Inc.,  O.J. No. 475 (C.A.). That decision was an appeal from a summary judgment motion decided under the pre-amendment rules, and the Court of Appeal expressly focused on proper interpretation of the “no genuine issue for trial” test; i.e., the pre-amendment test. 50 MCAP Leasing v. Lind Furniture, supra, at paragraphs 24 to 26 and 49. Page 15 and the responding party’s obligation to put its “best foot forward” - - an obligation that applied “even more than under the old rule”.51 8. Sedore v. Fleming, 2010 ONSC 1891. In ruling on a defendant’s motion for summary judgment, (to dismiss the plaintiff’s claim on the ground it was statute barred by the applicable limitation period), Justice Wood also opined that the relevant test remained that established by Irving Ungerman Ltd. v. Galanis, supra.52 9. Cockshutt v. Computer Facility Services, 2010 ONSC 1789. In dealing with a plaintiff’s motion for partial summary judgment under the amended rules, Justice Molloy acknowledged the expanded scope of a motions judge to make determinations of fact and findings of credibility. However, it was not in the interests of justice to exercise such powers before trial where there was already going to be a trial with respect to some of the plaintiff’s claims, involving the same witnesses, with the risk of factual overlap between the issues raised on the summary judgment motion and those left for determination by the trial judge. Adding the remaining issues to determination at the later trial would not significantly increase its length, and it therefore was in the interests of justice to have all the issues determined at the same trial. E. EXERCISE OF NEW ADDITIONAL POWERS - RULE 20.04(2.2) AND RULE 20.05 The expanded power of a summary judgment motions judge to conduct a “mini-trial” was, the Osborne report suggests, an intended response to “the clear call during consultations for an expedited mechanism for the resolution of straightforward disputed facts, other than a full trial”. Similarly, the expanded power of a motions judge to direct, expedite and fashion an appropriate summary trial was an intended answer to the call for a mechanism, already available to litigants in other Canadian jurisdictions, to have triable disputes resolved in a “summary fashion, without having to wait for a full trial”. Given the apparent widespread desire for such powers, it is noteworthy that there has been very little resort to them since their introduction on January 1, 2010. Indeed, they have been mentioned in only five decisions and were exercised or about to be exercised in only three, (on two occasions by the same judge). In particular: In Rutman v. Rabinowitz53, involving highly acrimonious defamation litigation commenced with the assistance of an Anton Pillar Order, a defendant by counterclaim moved for summary judgment based on a signed release. Given the serious issues of credibility involved, the moving defendant also requested a viva voce hearing before the motions judge, (Justice C. Campbell), to permit cross-examination on the parties’ 51 Kapy v. Hwang, supra, at paragraphs 18, 20 and 21. 52 Sedore v. Fleming, supra, at para. 3. 53 2010 ONSC 1045. Page 16 affidavit material. This was not opposed by the responding plaintiff, which had a contentious cross-motion of its own. The parties also agreed that the full summary judgment motion, including oral evidence, could be completed in a two-day period. Following discussion with counsel, Justice Campbell was satisfied that the summary judgment motion brought in respect of the counterclaim was “appropriate for and can be most expeditiously determined by utilizing the powers now granted to the Court under rules 20.04(2.1 and 2.2) to hear oral evidence by way of cross-examination on affidavits to determine whether there is a genuine issue for trial”.54 In doing so, Justice Campbell noted that the same evidence, to the extent appropriate, could also be used in relation to the cross-motion, to be heard at the same time. In 1526183 Ontario Ltd. v. Grant Equipment Corp.55, a commercial landlord moved for partial summary judgment for arrears of rent while the counterclaiming tenant presented a cross-motion seeking release of money paid into court and from its obligation to preserve certain chattels. The motions judge, (Justice Shaw), found the parties’ claims to be so intertwined, and the underlying circumstances so disputed and complex, that summary judgment was inappropriate. (In particular, it was “in the interests of justice that the powers set out in rule 26.04 … to weigh evidence, evaluate credibility of a deponent and to draw inferences from the evidence should, in this case, be exercised only at trial”.56) The landlord’s motion for summary judgment therefore was dismissed. The tenant then specifically requested that the court exercise its new powers under rule 20.05(2) to give directions and impose terms regarding conduct of the litigation. Noting that the issue had not been canvassed in any detail by the parties in their submissions, Justice Shaw declined the tenant’s request. In doing so, Justice Shaw noted that such directions were permissible under rule 20.05(2) only if orders were made under rule 20.05(1); i.e., specifying matters in dispute and/or ordering that a matter proceed to trial in specified ways. He has made no such orders, and believed, on the basis of the evidence before him, “that it would be premature to make such orders”.57 In Dr. Thomas Dentistry v. Bank of Nova Scotia58, the plaintiff’s mother, (a third party to the litigation), was alleged to have committed a fraud on the plaintiff and the defendant bank by forging her daughter’s signature on loan documents, and subsequently losing the loan proceeds through speculative investments on the stock market. The bank settled the plaintiff’s claim, and sought indemnity from the plaintiff’s mother. She acknowledged signing her daughter’s signature on loan documents, but defended the third party claim by alleging that a bank employee (and co-defendant in the litigation) knew what was happening and facilitated the arrangement. The bank moved for summary judgment. The motions judge, (Justice D.M. Brown), noted that the affidavit material filed by the parties presented a classic “he said/she said dichotomy”; i.e., diametrically opposed versions of events that made it appropriate, in the opinion of 54 Ibid., at para. 7. 55 2010 ONSC 928. 56 Ibid., at para. 46. 57 Ibid., at para. 54. 58 2010 ONSC 1227. Page 17 Justice Brown, to direct a “mini-trial” using the court’s new expanded summary judgment powers under rule 20.04(2.2). In that regard, Justice Brown reasoned as follows: In my view, it is not possible to weigh such evidence or to evaluate the credibility of either deponent without hearing some viva voce evidence from them. At the same time, I do not think that the interest of justice requires sending this matter to a full trial. An adjudication of the issues between the parties will require viva voce evidence from 2, or at most 3, witnesses. Extensive written evidence already exists in the record and can act as the bulk of the witnesses’ evidence-in-chief. The issues are narrow in scope and readily susceptible to an adjudication in a one-day hearing using a hybrid record of written and oral evidence. This dispute is an ideal candidate for the kind of “mini-trial” contemplated by rule 20.04(2.2)59. Justice Brown accordingly adjourned the bank’s motion for summary judgment to a later hearing before him on terms, (e.g., concerning the use of affidavit evidence as evidence- in-chief, time-limited cross-examinations, and time-limited closing and responding submissions), which in his view created a timetable that would permit completion of the “mini-trial” within one allotted day. Based on his view of the written evidence, this was seen as “fair and reasonable for hearing of the issues in dispute”. In Chidley-Hill v. Daw60, the plaintiff, a trial-lawyer, had brought a libel action against a reporter and the Toronto Star for publishing an article referring to a first instance court endorsement making the plaintiff lawyer jointly and severally liable, with his client, for the costs of a trial. (The relevant cost award was subsequently overturned by the Court of Appeal.) The media defendants moved for summary judgment dismissing the claim. Substantively, the motion was decided pursuant to the legal test under the “old rule 20”; i.e., the version in place prior to the rule amendments. The motions judge, (again Justice D.M. Brown), felt that was fair and appropriate because the motion had been brought and argued prior to the amendments coming into force, and it had only been the constraints of his calendar that had prevented rendering of a decision prior to January 1, 2010. Application of the “old” test resulted in the summary judgment motion being dismissed. However, Justice Brown indicated his intention to then “issue directions pursuant to rule 20.05(2) for the trial of the remaining issues”61, (although he delayed doing so to permit the parties time to first consult, agree and/or file written submissions relating to remaining pre-trial steps). The express reference to rule 20.05(2) as the framework for making such directions signalled Justice Brown’s understanding that the post-amendment rules applied to such matters, given the timing of his decision’s 59 Ibid., at para. 5. 60 2010 ONSC 1576. 61 Ibid., at para. 44. Page 18 release, even though substantive determination of the summary judgment had been decided under the pre-amendment rules.62 Finally, in Valemont-Group Ltd. v. Philmor Goldplate Homes Inc.63, the motions judge (Justice Karakatsanis), had occasion to consider and comment on the new expanded powers of the court pursuant to rule 20.05, even though the possibility of their exercise was not something immediately before the court. The parties had been engaged in litigation for seven years, with numerous lengthy interlocutory motions. Previous court efforts to narrow issues and expedite a trial to date had all been unsuccessful. Notwithstanding the fact that the matter had been set down for trial, (the expected duration of which was also a matter of serious disagreement), the defendants brought motions for summary judgment dismissing the claims. In seeking leave to proceed with the motions, (notwithstanding the fact that the matter had been set down for trial), the defendants argued in part that the new summary judgment rules, effective January 2010, provided an opportunity to obtain partial summary judgment that was not previously available, and that the new powers for case management orders would assist in streamlining what was bound to be a lengthy trial. Indeed, the defendants submitted “that every summary judgment motion is now also a case management motion because of the powers in rule 20.05”.64 Justice Karakatsanis decided that, even if the new rules constitute a change in circumstances, it was not appropriate to grant leave permitting the summary judgment motions to proceed. The matter was long overdue for trial, and Justice Karakatsanis was very sceptical that the proposed motions would do much to streamline the litigation, as numerous difficult issues would remain outstanding for trial. For present purposes, Justice Karakatsanis also expressly rejected defence counsel’s submissions that amendments to rule 20.05 had created unfettered powers of case management on every summary judgment motion: Unless the parties agree under rule 20.04(2)(b), a summary judgment motion does not create a new general power to fashion a flexible individually crafted trial process, involving a combination of affidavit, transcript or oral evidence for the purpose of determining all or part of the claim. … [C]ase management considerations themselves do not justify the bringing of this summary judgment motion. I do not agree with counsel that rule 20.05 makes every summary judgment motion a case management motion. Although rule 20.05 sets out powers for a judge to assist in defining the issues and providing directions for the conduct of proceedings, those powers are discretionary in the event the motion is unsuccessful in whole or in part. Furthermore, a summary motions judge would take care not to exercise the new powers in a way that might 62 The pre-amendment version of rule 20.05(2) contained no reference to directions. It simply declared that, where a judge hearing a summary judgment motion had specified material facts not in dispute, the trial was to be conducted accordingly unless the trial judge ordered otherwise. 63 2010 ONSC 1685. 64 Ibid., at paragraphs 10, and 17-18. Page 19 hinder the trial judge from managing the trial, especially if issues or facts overlap.65 Given the stated demand for expansion of the court’s powers to move beyond the hitherto “binary” outcomes of granting summary judgment and dismissing a claim, or refusing summary judgment and committing the matter to trial, the apparent lack of interest to date in new rules 20.04(2.2) and 20.05 may seem somewhat surprising. Consider, however, the following: (a) Many of the summary judgment motions decided to date under the amended rules actually were brought well before January 1, 2010, at a time when any apparent conflict in the underlying affidavit evidence was sufficient to prevent summary judgment from being granted. To the extent those considering such motions bore this in mind, it should not be surprising that few of the motions brought involved conflicting evidence of the sort amenable to resolution by the new “mini-trial” procedure. This is likely to change with the passage of time, as parties adapt to the new rules and advance summary judgment motions that would never before have stood any chance of success. The occasions suitable for exercise of the “mini-trial” option are bound to increase accordingly. (b) The new summary judgment powers of “mini-trial” and case management should not be considered in isolation. In particular, the simultaneously introduced powers of the motions judge to weigh evidence, evaluate credibility and draw reasonable inferences may now suffice in many cases to “do the job”; i.e., to determine whether the matter is amenable for resolution by summary judgment or in need of a full trial, in the interests of justice. The sparse consideration and use of the “mini-trial” and case management rules therefore may not be an indication that they are not working, but an indication that the other rules are working. (c) A matter involving disputes and issues sufficiently complex and contentious to prevent summary judgment under the new rule 20, (i.e., notwithstanding the court’s new powers to weight evidence, evaluate credibility and draw reasonable inferences), is also likely to be one requiring the full flexibility and procedures of a trial to ensure that justice is done between the parties. Small wonder then that a motions judge would be reticent, in such circumstances, to fetter the ability of the trial judge to do his or her job properly; (i.e., in the words of Justice Karakatsanis in the Valemont-Group case, supra, “to exercise the new powers in a way that might hinder the trial judge from managing the trial”). F. COSTS For the most part, the summary judgment decisions rendered since the amendments have not yet addressed the question of costs, and therefore have not touched upon the revised cost provisions in rule 20.06. 65 Ibid., at paragraphs 28 and 32. Page 20 As a practical matter, this is because most of the substantive summary judgment decisions rendered since amendment of the rules conclude with the motions judge specifically reserving and postponing the question of costs; (e.g., by inviting the parties to agree on costs, failing which they are to abide by directions given for the making of subsequent cost submissions, usually in writing). In a number of decisions, there is no mention whatsoever of costs. As for the remaining summary judgment decisions rendered pursuant to the amended rules, (i.e., excluding those decisions where the old rules were thought to apply66): In some instances, the parties either agreed on costs or the successful party declined to seek costs, thereby eliminating any need for a judicial determination. In some cases, further discussion of costs was precluded by the motions judge ordering no costs because of the parties’ divided success.67 In some cases, the motions judge simply awarded and fixed costs without further comment or explanation.68 In at least two cases69, the motions judge considered the parties’ competing submissions as to scale and quantum, but did so having express regard only to other rules of general application beyond the summary judgment context, (e.g., rules 1.04, 57.01 and 57.03), without making any mention whatsoever of rule 20.06. In another case70, the motions judge dismissed the motion for summary judgment with full indemnity costs payable to the plaintiff, (quantum to be decided after delivery of written submissions). However, this was done without any expressly stated reason, including any reference to rule 20.06. Moreover, the award of full rather than substantial indemnity costs, (and it is the latter referenced by rule 20.06), suggests reliance on the court’s wider discretionary authority to award costs appropriate to the circumstances71. In Healey v. Lakeridge Health Corporation72, Justice Perell gave detailed reasons for his award of costs in the wake of his previous substantive decision73, discussed above, dismissing class action claims in response to a summary judgment motion brought by a defendant. However, while His Honour devoted considerable attention to the summary 66 For example, see Daimler Chrysler v. 1377738 Ontario Inc. et al., 2010 ONSC 931. The decision, released February 9, 2010, after the receipt of written submissions, decides costs of a successfully defended motion for summary judgment. The date of the underlying substantive hearing and decision is unclear, but they apparently pre-dated implementation of the new rules on January 1, 2010. The motions judge expressly refers to and applies the pre- amendment version of rule 20.06, and relies on Onex Corporation v. American Home Insurance, supra, as authority for the proposition that the subsequent rule change is not retroactive. 67 Valemont Group Ltd. v. Philmor Goldplate Homes Inc., 2010 ONSC 1685. 68 See, for example, Sangha v. Sekhon, 2010 ONSC 1017. 69 Noble v. York University Foundation, 2010 ONSC 399, and Cuthbert v. TD Canada Trust, 2010 ONSC 830. 70 Black v. Slo-Pitch National Softball Inc., 2010 ONSC 1837. 71 Section 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended. 72 2010 ONSC 1884. 73 Healey v. Lakeridge Health Corporation, 2010 ONSC 725. Page 21 judgment rule amendments in his earlier substantive decision, he makes no reference at all in his cost decision to the provisions of rule 20.06. While further summary judgment cost decisions can be expected, those released to date obviously suggest that the amendments to the cost provisions of rule 20 have had the desired effect. Whereas the presumption of substantial indemnity cost awards created by the former rule 20.06 compelled the attention of the motions judge, (if only to find that the presumption should not apply in the circumstances), it appears that the amended version of rule 20.06 is now being largely ignored and kept in reserve for cases where its application is requested or otherwise considered appropriate. The excessive cost deterrent created by the pre-amendment rule seems to have been swept away. G. CONCLUSIONS These are still early days in the life of the new rules governing summary judgment. However, the experience to date suggests some tentative general conclusions: 1. The pre-amendment rules will continue to apply only to summary judgment motions brought and argued prior to January 1, 2010, in respect of which a decision has yet to be rendered. For all other summary judgment motions, the amended rules will apply, regardless of when the motion may have been brought or originally scheduled for hearing. 2. The amended summary judgment rules should be applied purposefully to make summary judgment more readily available, recognizing that some matters otherwise suitable for trial no longer require one. 3. Insofar as it concerns restrictions on the ability of a summary judgment motions judge to weigh evidence, assess credibility or draw reasonable inferences, pre-amendment case law has been overruled. 4. Pre-amendment case law relating to the test to be applied, the respective burdens of the parties, and assumptions about putting one’s “best foot forward” remains relevant. The test is whether there is a material fact requiring a trial for its resolution; i.e., whether the “forensic machinery of a trial” is required to “truly, fairly and justly” resolve the issue. The expanded powers of the court simply offer “more tools” to assist in making that determination. 5. The court’s expanded powers to conduct a mini-trial or give detailed case management directions may not be applied that frequently in practice. 6. The previous cost-deterrent inhibiting parties from attempting summary judgment motions has been eliminated. Costs now apparently will be dealt with by the “normal” rules applicable to most motions. Whether these developments will encourage more summary judgment motions, or permit the rule to achieve more of the outcomes originally intended, (“weeding out” claims and defences that should not engage the resources of courts or litigants to full trial), remains to be seen. SUMMARY JUDGMENT 2010 DATE CASE NAME CITATION TAB December 24, 2009 Onex Corporation v. American Home Assurance 2009 CanLII 72052 1 Para 8: Transitional Rule: “if the legislature had intended that the old rule 20 would continue to apply to summary judgment motions filed before 2010 or that a general “transitional provision” was required, it could have said so. It chose not to do this. It follows, therefore, that the new summary judgment procedure is intended to take immediate effect as of January 1, 2010 and apply to all rule 20 matters before the court, whenever the motion was filed." January 8, 2010 Shankowsky-Day et al v. Estate of Isaac et al 2010 ONSC 121 2 Paras 4-9: Discussion of the new test for summary judgment. That a motions judge is no longer precluded from assessing credibility, weighing conflicting evidence or making findings of fact because these restrictions have been modified as of January 1, 2010. That it is proper and necessary for him or her to conduct a thorough of the Pleadings and all the admissible evidence. (also considers 24.04(4) and determining a question of law) January 11, 2010 Langille v. Toronto (City) 2010 ONSC 443 3 Paras 5-6 and 19-21: The motion is governed under the new Rules even though counsel relied on case law decided under the prior Rule. All parties did acknowledge that the new Rule applied. The new Rule also clarifies the obligations of the Responding Party. January 14, 2010 Hawkins v. Attorney General 2010 ONSC 303 4 Paras 42-44: On a summary judgment motion the task of the motions judge is not to resolve the factual issues, but to determine if there are factual issues that require a trial. A motions judge must engage in a limited weighing of evidence to determine if the enunciated issues are genuine. (Heard in December 2009) January 15, 2010 BCP v. Silva 2010 ONSC 392 5 Para 2: In the course of deciding the motion, the judge can weigh evidence, evaluate credibility and draw reasonable inferences. January 15, 2010 Brown’s Cleaners and Tailors Ltd. v. Omers 2010 ONSC 1073 6 Realty Corp. et al. Paras 15-23: Consideration of whether a motion filed prior to the amendment, but heard after January 1, 2010, would be subject to the new Rule. Yes it should be because if the Legislature had intended that the Former Rule 20 would continue to apply, they would have made some transitional provision. January 15, 2010 Noble v. York University Foundation 2010 ONSC 399 7 Para 14-15: Consideration of Rule 31.06(1)(semblance of relevance) and whether a motion filed prior to the amendment, but heard after January 1, 2010, would be subject to the new Rule. Yes they would. This is included for comparison purposes. January 22, 2010 Sun Life Assurance Company of Canada v. 2010 ONSC 558 8 Metropolitan Life Insurance Company Paras 9 and 43: No discussion of summary judgment or the Rule, but summary judgment granted. Extensive review of the evidence. January 25, 2010 Zwaigenbaum v. Scher 2010 ONSC 559 9 Paras 1, 6, 11-13: The issue of discoverability on summary judgment motions. Previously, the Ontario Court of Appeal had noted that generally, it is not appropriate for a motions judge hearing a motion for summary judgment to resolve the issue when the applicability of the discoverability rule is central to its resolution. However, that rationale needs to be revisited in light of the amendments to the Rules. January 25, 2010 1057330 Ontario v. Melrose 2010 ONSC 483 10 Paras 26 -30: According to the Judge, because the motion for summary judgment was brought prior to January 1, 2010, the amendments which took place on that date are not applicable. (Heard November 9, 2009). January 29, 2010 Zurba v. Lakeridge Health Corp., et al. 2010 ONSC 318 11 Paras 17 – 21: The parties agree that since the motion is being argued after January 1, 2010, the new Rule applies. The issue is whether, given the new powers in Rule 20.04(2.1) ‘it is in the interest of justice for such powers to be exercised only at trial.’ January 29, 2010 Healey v. Lakeridge Health Corporation 2010 ONSC 725 12 Paras 15-39. Substantial Review of the law as it relates to summary judgment and the new Rules. Stating that trials will not disappear under the new regime. The determinant will not be whether a litigant wants a trial, but whether a litigant needs one to achieve substantive and procedural justice (32). There will be no bright line test like there was under the old Rules, because under the old Rule, it was clear when a motions judge needed to weigh evidence, that correspondingly there was a genuine issue for trial. January 29, 2010 Hurley Corp. v. Canadian IPG Corp. 2010 ONSC 681 13 Paras 46-47: Motion was brought prior on December 30, 2009, as such, the test under the old Rule is applicable. Consideration of the fact that the Rule was substantially changed just two days after this motion was heard. However, Counsel did not ask to be considered under the new Rule. February 1, 2010 SMS Rents v. Totalsite Works Inc. et al. 2010 ONSC 776 14 Paras 7-9: Brief discussion of summary judgment and the availability of partial summary judgment under 20.04(3). February 3, 2010 BNS v. CMC Medical and Madhu Jain 2010 ONSC 826 15 Para 9 – On the basis of the evidence, there is no genuine issue requiring a trial within the meaning of Rule 20.04 as amended February 3, 2010 Alymer v. HMQ and AGC 2010 ONSC 649 16 Substantive Analysis: That the new Rule will apply to the motion, not the old Rule 20 which existed when the motion was originally commenced. Substantive review of the Legislative intent behind the revisions. Also, refusal to apply the court’s inherent jurisdiction to control its own process by applying the old Rule 20 February 3, 2010 Greenhalgh v. Vaillancourt 2010 ONSC 552 17 Para 24: Motion for partial summary judgment. However, the issues are of such a nature that a trial will be required to determine them. Their magnitude is such that the outcome of the action cannot and should not be discerned, even in part, on the paper record. (Heard October 5, 2009). February 4, 2010 Cuthbert v. TD Canada Trust 2010 ONSC 830 18 Paras 9-15, 44: Extensive Review of the new Rule. Notwithstanding the broad powers of the new rule, although a motions judge may weigh the evidence, evaluate the credibility and draw reasonable inferences from the evidence, it is not the role of the motions judge to make findings of fact for the purpose of deciding the action on the basis of the evidence presented on the motion (11). February 8, 2010 Vancore. v. T.O.A. 2010 ONSC 895 19 Para 18: Critical facts indicate there is no genuine issue for trial. February 9, 2010 Daimler Chrysler v. 1377738 Ontario Inc. et al. 2010 ONSC 931 20 Paras 4-5: Issues as to costs for a party on a successful summary judgment motion heard prior to January 1, 2010. Although the new section allows more latitude, the old Rule still applies as there was no mention of retroactivity when the amendments were made. February 11, 2010 Sangha et al. v. Sekhon et al. 2010 ONSC 1017 21 Paras 4-6: Serious issue needs a trial to resolve. February 12, 2010 New Solutions Extrusion Corporation v. Gauthier 2010 ONSC 1037 22 Para 8-12, 28, 42: The change in the Rules permits a more meaningful analytical review of the paper record. The test is essentially the same as it was under Irving Underman, however, the new Rule 20 provides the judge with more tools to determine if the test is met. February 16, 2010 Rutman v. Rabinowitz 2010 ONSC 1045 23 Para 8-12, 28, 42: The change in the Rules permits a more meaningful analytical review of the paper record. The test is essentially the same as it was under Irving Underman, however, the new Rule 20 provides the judge with more tools to determine if the test is met. February 19, 2010 Hosseini v. Salerno 2010 ONSC 503 24 Para 32-33: Summary Judgment will not be appropriate in all circumstances. If issues of credibility are raised which are difficult to determine on the record, a trial will be required. February 22, 2010 1526183 Ontario Ltd. v. Grant Equipment Corp 2010 ONSC 928 25 Paras 20, 28, 40-42: Where the summary judgment motion is brought by a Plaintiff, it must be clear to a motions judge that it is proper to deprive the Defendant of its right to a hearing in the merits. February 23, 2010 Dr. Thomas Dentistry v. Bank of Nova Scotia 2010 ONSC 1227 26 Paras 3-6: The Court found that the type of dispute presented in this case was an ‘ideal’ candidate for the kind of ‘mini trial’ contemplated by the new Rule. An adjudication of the issue between the parties will require viva voce evidence from two or three witnesses, but it would not be in the interests of justice to send the matter to a full trial. Since extensive written evidence already exists in the record, it can act as the bulk of the witnesses’ evidence in chief. February 25, 2010 Kocmut v. 718504 Ontario Inc. et. al 2010 ONSC 1253 27 Para 8: On a motion for summary judgment where the motions judge finds no facts to be in dispute, but legal issues to be determined, it is open to that judge to determine the legal issues and give judgment accordingly. February 26, 2010 Polywheels Inc. (Re) 2010 ONSC 1265 28 Paras 6, 48: Rule 20.04(2.1), by analogy, provides some assistance in determining whether a trial of an issue is required. February 26, 2010 Abrams Estate v. Air Canada #1 2010 ONSC 1280 29 Consideration of the jurisdiction of a Judge or Master when hearing summary judgment motions. The reasoning may not, in the Court’s opinion, harmonize entirely with the broad wording of Rule 37.04., and as a result, in order to achieve better consistency, a reconsideration of the language of Rule 37.04 may be needed. March 02, 2010 Hino Motors Canada v. Kell 2010 ONSC 1329 30 Paras 5-9, 24: The new Rule does not change the burden in a summary judgment motion, the moving party still bears the evidentiary burden of showing that there is no genuine issue requiring a trial. The Court is entitled to assume that the record contains all the evidence which the parties would present if there were a trial. March 05, 2010 Gentra Canada Investments Inc. v. Lipson 2010 ONSC 1417 31 Paras 4-5, 63, 100: If the parties have presented no evidence with respect to the issue they raise, then the matter must be left to be determined at trial. March 11, 2010 Vella v. Pavao 2010 ONSC 1543 32 Paras 7-8: While the wording of the test to be satisfied on a motion for summary judgment was changed, judicial interpretation of the test are well know. The parties must put their best foot forward and/or lead trump or risk loosing. March 12, 2010 J.R. v. Vickery 2010 ONSC 1446 33 Paras 7-9: As stated recently in the Court of Appeal decision of Aronowicz v. Emtwo Properties Inc., the test from Irving Ungerman remains the proper test for summary judgment. The judge is still required to answer the ultimate question of whether a trial is required to resolve a genuine issue. March 16, 2010 Chidley-Hill v. Daw 2010 ONSC 1576 34 Paras 12-14: Discussion of the Old Rule of Summary Judgment and the fact that the new amendments will render much of the former jurisprudence obsolete. (Heard December 16, 2009). March 17, 2010 Wray v Scotia Mortgage 2010 ONSC 1421 35 Paras 25-29: When there are numerous facts in dispute and much will turn on the credibility of the parties, a full trial will be required. This is especially true when there is a meager amount of evidence on record. March 18, 2010 Valemont Group Ltd. v. Philmor Goldplate 2010 ONSC 1685 36 Homes Inc. Paras 17 – 33: Substantial Consideration of the new Summary Judgment rule in conjunction with case management procedures. Also, a finding that the change to the Rules does not constitute a change in circumstances substantial enough to grant leave to bring a motion for summary judgment when the matter is set down for trial. March 22, 2010 MCAP Leasing v. Lind Furniture 2010 ONSC 1085 37 Paras 5, 21, 24-26, 51: The question on a summary judgment motion is whether the issue can be properly decided based on the parties’ pleadings and the affidavit evidence presented, or alternatively, whether the decision will depend on evidence from a number of witnesses, whose credibility can be best determined at trial. A motions judge must be aware that the resolution of credibility issues is enhanced by observing the witnesses. March 22, 2010 Kapy v. Hwang 2010 ONSC 1597 38 Paras 17-12: The Court’s role under the new Rule is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility, weighing evidence, and drawing factual inferences are all functions reserved for the trier of fact. The Court must still assess the evidence on both sides and give full weight to the fact that the onus is always on the Plaintiff. March 25, 2010 Cockshutt v. Computer Facility Services 2010 ONSC 1789 39 Paras 24-27: If there are a number of issues and an absence of any serious prejudice or disadvantage to the Plaintiff in proceeding by way of trial, it will be in the interest of justice to refuse to bifurcate the issues by way of partial summary judgment. March 26, 2010 Black et al. v Slo-Pitch National Softball Inc. 2010 ONSC 1837 40 Paras 13 -15: If there is a triable issue on the standard of care of care, a trial will be required. March 31, 2010 Healey v. Lakeridge Health Corporation And 2010 ONSC 1884 41 Between Horgan v. Lakeridge Health Corporation Reasons for decisions on Costs following one of the first Summary Judgment motions under the new Rule. The decision takes into consideration the fact that there were some elements of genuine novelty in the debate about the amendments to the Rule April 01, 2010 Sedore v. Fleming 2010 ONSC 1891 42 Paras 3 and 8: On a motion for summary judgment the moving party must establish that there is no genuine issue for trial, if the test is met and an amendment to the pleadings could cure the defect, the motions judge must consider whether to allow such an amendment. However, the expiry of a limitation period is a radical defect going to the heart of the claim and as such, it cannot be cured by an amendment to the pleadings. Schedule B: 2010 Summary Judgment Decisions – Court of Appeal DATE CASE NAME CITATION TAB January 12, 2010 1721789 Ontario Inc. v. 985091 Ontario Ltd. 2010 ONCA 14 1 Appeal from decision rendered July 16, 2009, applying the old pre-amendment “genuine issue for trial” test. Court of Appeal holds that the motions judge applied that test properly. Appeal dismissed. January 12, 2010 Covedale Developments v. 1589380 Ontario Ltd. 2010 ONCA 16 2 Appeal from decision rendered May 22, 2009, ordering specific performance on a summary judgment motion brought and decided under the old pre-amendment rule. Court of Appeal finds that law clearly permits awards of specific performance on summary judgment motions. Appeal dismissed. January 22, 2010 Carevest Capital Inc. v. Limmer Corporation Inc. 2010 ONCA 41 3 Appeal from decision rendered April 8, 2009, granting summary judgment under the old pre-amendment test prior to mandatory mediation session. Court of Appeal holds this is permissible, if motion is brought within timelines stipulated for holding a mediation session. Appeal dismissed. January 26, 2010 De Morales v. Lafontaine-Rish Medical Group 2010 ONCA 59 4 Appeal from decision rendered June 19, 2009, applying the old pre-amendment “genuine issue for trial” test. Court of Appeal holds that the motions judge applied that test properly. Appeal dismissed. January 29, 2010 1393069 Ontario Inc. (Cornell Hair Salon & 2010 ONCA 79 5 Esthetics) v. Sarvom Corporation Appeal from decision rendered September 4, 2009, applying the old pre-amendment “genuine issue for trial” test. Court of Appeal holds that the motions judge applied that test properly. Appeal dismissed. February 1, 2010 Roberts v. Toronto Life Publishing Co. Ltd. 2010 ONCA 82 6 Appeal from decision rendered June 16, 2009, applying the old pre-amendment “genuine issue for trial” test. Court of Appeal holds that the motions judge failed to explain why there was no such issue, and felt that there clearly were such issues. Appeal allowed and summary judgment set aside. February 3, 2010 West v. Allapa Enterprises Inc. 2010 ONCA 97 7 Appeal from decision rendered August 25, 2009, applying the old pre-amendment “genuine issue for trial” test. Court of Appeal holds that the motions judge did not err in granting summary judgment. Appeal dismissed. February 4, 2010 Aronowicz v. Emtwo Properties Inc. 2010 ONCA 96 8 Appeal from decision rendered May 11, 2009, applying the old pre-amendment “genuine issue for trial” test, and granting summary judgment. Court of Appeal holds that the judge applied the correct test, and did so properly. (Specific findings that the motion judge did not engage in weighing evidence or drawing inferences, then prohibited on motions for summary judgment.) Appeal dismissed. February 16, 2010 Goodlaw Management Inc. v. Keuroghlian 2010 ONCA 125 9 Appeal from decision rendered September 16, 2009, applying the old pre-amendment “genuine issue for trial” test. Court of Appeal not persuade that the motions judge erred in granting summary judgment. Appeal dismissed. February 26, 2010 TD Waterhouse Canada Inc. v. Little 2010 ONCA 145 10 Appeal from decision rendered August 21, 2009, applying the old pre-amendment “genuine issue for trial” test. Court of Appeal not persuaded that the motions judge erred in granting summary judgment. Appeal dismissed. March 11, 2010 Grant Thornton LLP v. Direct Plastics Ltd. 2010 ONCA 187 11 Appeal from decision rendered July 14, 2009, applying the old pre-amendment “genuine issue for trial” test. Court of Appeal holds that the motions judge did not err in dismissing the appellant’s counterclaim pursuant to that test. Appeal dismissed. March 30, 2010 Van de Vrande v. Butkowsky 2010 ONCA 230 12 Appeal relating to the granting of summary judgment, but in the Small Claims Court. The Court of Appeal finds that the procedure of a motion for summary judgment is not available under the Small Claims Court Rules. No discussion concerning the specific application of the post- amendment summary judgment rule available in Superior Court. (The Court finds it neither useful nor appropriate to apply the Superior Court jurisprudence under Rule 20 to interpret r.12.02 of the Small Claims Court Rules.) April 01, 2010 D.G. Sports Inc. v. WWK Sportsdome Inc 2010 ONCA 234 13 Appeal from decision rendered July 29, 2009, applying the old pre-amendment “genuine issue for trial” test. Court of Appeal holds that the motions judge did not err in granting partial summary judgment. Appeal dismissed.