THE EMPLOYERS' EDGE
New Test for Summary Judgment Developed in Recent Ontario Court of Appeal Decision
On December 5, 2011, the Ontario Court of Appeal (“OCA”) released its much-anticipated decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (CanLII), clarifying the appropriate use of summary judgment motions by setting out a new “full appreciation test”. Summary judgment motions allow for the determination of issues in dispute without having to resort to the full trial process. In creating this new test, the OCA has provided well-needed guidance clarifying the types of cases that will be amenable to summary judgment and by establishing a new approach to the interpretation and application of the amended Rule 20 of the Rules of Civil Procedure.
“Full Appreciation Test” and Cases where Summary Judgment may or may not be Appropriate
The OCA began its analysis by reminding the legal profession that the purpose of the amendments to Rule 20 was to eliminate unnecessary trials, not to eliminate all trials. Summary judgment will not be the appropriate mechanism in all disputes, but only in circumstances where the motion record is sufficient to ensure that a just result could be achieved without a full trial. The Court listed three types of cases that would be appropriate for summary judgment:
Cases where the parties agree that the case could appropriately be dealt with on summary judgment (the Court, however, maintains its discretion to refuse summary judgment where it disagrees with the parties).
Cases where claims or defences are shown to be without merit or where the claim or defence has no chance of success; and
Cases where the trial process is not required “in the interests of justice”. To determine whether a case falls into this category, the motion judge must ask whether the full appreciation of the evidence and issues that is required to make dispositive findings can be achieved by summary judgment, or can this full appreciation only be achieved by way of a trial?
In determining whether to grant summary judgment or to proceed to a full trial, the motions judge must ask the following question: Can the full appreciation of the evidence and issues that is required to make dispositive findings by achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?
According to the OCA, a case will likely require a full trial where:
There is a voluminous record
Multiple findings of fact are required
Contentious factual issues are present
A number of witnesses will be called
There is an absence of documentary evidence to allow a motions judge to assess credibility of witnesses
Conversely, a Court may be more willing to entertain a motion for summary judgment where:
It is document-driven
There are limited contentious factual issues
The record can be supplemented with limited oral evidence or discrete issues.
Importance of Case
While the OCA’s decision brings some well-needed clarity to Ontario’s summary judgment rules, it remains to be seen how lower courts will apply and interpret the “full appreciation” test advocated by the OCA. Now that judges have greater tools at their disposal to determine whether a full trial is necessary, it is likely we will see a greater number of summary judgment motions as claimants “test the waters” to see whether the Courts will in fact exercise their power to dismiss a case at a preliminary stage, after taking into account a “full appreciation” of the evidence before them.
From an employer’s perspective, we expect to see more employees taking advantage of summary judgment motions in wrongful dismissal actions in order to recover damages more quickly and without the legal costs that would be incurred in a full blown trial process. For a recent example of the considerations on summary judgment in the wrongful dismissal context, please see our November 24, 2011 blog where we reviewed two recent summary judgment decisions. While these decisions pre-date the Court of Appeal’s decision in Combined Air Mechanical Services Inc. we believe that the motion judges applied much of the same reasoning in coming to their respective decisions.
For more information on the summary judgment process or how it may impact your current wrongful dismissal litigation, please contact one of the lawyers at CCP.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.