Court of Appeal comments on the new summary judgment rule

The Court of Appeal has now released its decision regarding the new summary judgment rule. The appeal was heard before a five panel Court and pertained to five action. It is released under the name Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.

The Court held that there are three types of cases that are amenable to summary judgment:

1. Where the parties agree it is appropriate to determine an action by way of summary judgment (para. 41);
2. Claims or defences that are shown to have no merit (para. 42); and
3. Where the trial process is not required in the interest of justice (para. 44).

It is not necessary for the judge to categorize the type of of case in question. In fact, the Court held that the latter two types of cases are not to be viewed as discrete compartments.

The test for summary judgment is the "full appreciation test". The motions judge must ask "can the full appreciation of the evidence and issues that is required to make dispositive findings be
achieved by way of summary judgment, or can this full appreciation only be achieved by
way of a trial?" (para. 50). In cases that call for multiple findings of facts emanating from a number of witnesses and found in a voluminous record, summary judgment is not a substitute for the trial process. On the other hand, the full appreciation test may be met in document-driven cases with limited testimonial evidence, cases with limited contentious factual issues or where the record can be supplemented to the requisite degree at the motion judge's direction by hearing oral evidence on discrete issues.

It remains to be seen how this will impact summary judgment motions going forward. Are judges going to be more reluctant to grant summary judgment?

- Tara Pollitt

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