Clarity on summary judgment needed: lawyer

The bar and the bench must embrace the new Rules of Civil Procedure on motions for summary judgment if they hope to cut costs and increase the speed of justice, according to an experienced litigator.

Robert van Kessel of Lawrence Lawrence Stevenson LLP in Brampton, Ont., told an audience of civil litigators at the Ontario Bar Association Institute 2011 that the Ontario Court of Appeal needs to settle already-diverging lines of judicial thought on the authority to grant motions for summary judgment.

“The more use that is made of the rule, the more the court system should be forced to respond,” van Kessel said during a session on the new Rules one year after their introduction. “There should be fewer trials, less costs for clients, and speedier results. I hope we don’t make summary judgment too hard to get through restrictive interpretations because that’s going to cause a chilling effect on the use of the rule.”

The issue, he added, requires quick attention. “We are ultimately looking to the Court of Appeal for a fundamental change in attitude . . . and urgently so, I might add, because there are already competing lines of authority on whether a motion judge can find fact on a summary judgment motion.”

The Court of Appeal has traditionally had a narrow view of judicial authority for Rule 20 motions, according to van Kessel. He said one judge told him he was reluctant to grant a motion for summary judgment in one case before the new Rules because it would just be on “a bungee cord back from the Court of Appeal.”  

“We don’t want to hear that,” van Kessel said. “We don’t want to deal with those types of problems. I think the new rules for dealing with disposition before trial are there to address the institutional resource problem we face. If the new rule isn’t dealt with properly, we’re going to be right back to where we started.”

The Rule 20 amendments allow a motions judge to weigh evidence, evaluate the credibility of a deponent, and draw “any reasonable inference from the evidence” in deciding whether or not there’s any genuine issue requiring a trial.

According to van Kessel, the new powers have been described as a “revolutionary change,” although some judges have adopted a more conservative approach and there’s debate over whether they can make findings of fact.

In a decision released just weeks after the new Rules took effect, then-Superior Court Justice Andromache Karakatsanis laid down the marker on the issue as she granted summary judgment to the defendants in Cuthbert v. TD Canada Trust.

She has since moved to the Court of Appeal.
“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 a motion for summary judgment,” she wrote in a decision released on Feb. 4, 2010.

Superior Court Justice Sarah Pepall leads the opposing camp with her decision in Canadian Premier Life Insurance Co. v. Sears Canada Inc. on Sept. 17, 2010. “Implicit in these powers is the ability to make a finding of fact,” she wrote. “If a motions judge using these powers can safely make a determination without the need for a trial, he or she is authorized to do so.”

Superior Court Justice Carolyn Horkins, who also spoke at the event, left no doubt about which camp she falls into. “I believe fact-finding is the right way to go,” she said. “You’re only drawing inferences for one reason, and that’s to find facts. It’s clearly inferred in that rule that we should find facts.

If we go back to no fact-finding, then why did we have this rule change at all?”
Horkins, who sits in Toronto, said she believes most judges she speaks to are leaning in that direction, especially at the Superior Court in Brampton.

“It’s not a question of can we find facts. That shouldn’t be the debate. The debate should be about whether it was appropriate to find facts and whether this was the right case to find facts.”
On a practical level, the two streams of thought are creating a headache for lawyers, according to van Kessel. “The role of a lawyer is to predict outcomes for clients.

When you’ve got competing lines of authority, that’s a pretty difficult job to do. We need, very quickly, definitive resolutions from the Ontario Court of Appeal so we don’t continue to push these two lines along.”

According to Horkins, superior courts in Toronto and Newmarket, Ont., have seen a marked increase in the number of summary judgment motions. However, she said counsel are treating them like traditional Rule 20 motions and failing to take advantage of the new mini-trial provisions.

In his report for the Civil Justice Reform project, former associate chief justice Coulter Osborne envisioned an expedited mechanism for the resolution of straightforward yet disputed facts. The mini-trial allows motions judges to hear viva voce evidence from witnesses to aid them with their decision on a motion for summary judgment.

In van Kessel’s view, the chance to hear from deponents in person could be the extra nudge some judges need to grant motions for summary judgment. “There is, I sense on the part of some members of the bench, a reluctance to tackle credibility issues on the basis of a paper record,” he said. “I can sympathize with that view.”

Lawyers were slow to take advantage of a similar rule in British Columbia but now use it in 60 per cent of civil cases in the province, van Kessel said.  

According to van Kessel, one of the problems with mini-trials revolves around scheduling. Judges hearing mini-trials must be the same ones deciding on motions for summary judgment, and it can be difficult to co-ordinate their availability with witnesses and counsel on short notice.

“I’m not sure how all that is going to work,” van Kessel said. “We have a tendency to build all the houses first, and then the road system to handle the traffic catches up. In the meantime, you have gridlock. And gridlock is not good in the justice system.

Grand plans, as we’ve seen with this hairpin turn in the summary judgment rule, need to have grand resources to implement, monitor, and evaluate the usefulness of the change.”

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