Summary Judgment or Trial? Clarifying the Law

By: V. Ross Morrison and Natalie Schernitzki

Summary judgment motions have become an increasingly important part of the litigation landscape.

There is a reason for this.

The Supreme Court of Canada, in a landmark decision released early last year, decided that lawsuits should be resolved in this manner where a judge can find the necessary facts and apply the relevant legal principles to resolve the dispute cost-effectively.

As a result, the number of summary judgment motions that have been filed with the courts has increased exponentially.

But that does not mean the end of the trial process as we know it.

Recently we responded to a motion for summary judgment brought by the defendants (our client is the plaintiff).

The defence contended that this was precisely the type of case that the Supreme Court of Canada had in mind, and asked the court to resolve the matter on the basis of the ‘paper record’ before it.

We countered that there are serious issues of credibility between the parties that require a trial judge to hear from the witnesses and observe their character and demeanour in the witness box.

The motions judge agreed.

Notwithstanding the substantial evidentiary record which the defence had compiled, the court accepted our submission that the trial judge needs “to see it all and hear it all in order to do justice between the parties,” and that means a trial, with the witnesses testifying before the judge.

The action has now been placed on the trial list. 

Summary judgment is a process which we often recommend to clients for the reasons now endorsed by the Supreme Court of Canada.  However, it was not appropriate in this case and we are pleased that the motions judge agreed with us and that the client will have his day in court.

For more information please contact Ross Morrison or Natalie Schernitzki by phone at (416) 368-0600 or by email at vrmorrison@businesslawyers.com or nschernitzki@businesslawyers.com.


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