September 12, 2024
If confronted by a motion for summary judgment, you must “put your best foot forward.”
A motion for summary judgment is an alternative to having your lawsuit resolved through a trial.
Prior to 2008, when the rule was amended, summary judgment was rarely available. Under the amendment to the rules, the court was given broader powers to decide matters on a motion for summary judgment where a trial is not required. After a decision of the Supreme Court of Canada in 2014, encouraging the use of motions rather than trials, to reduce delay and save cost, these motions gained further popularity. They are especially popular in wrongful dismissal actions, but also are often used in other cases.
The motion may be brought either before or after examinations for discovery.
That is part of the importance of the respondent “putting their best foot forward” as illustrated by the Ontario Court of Appeal decision in Switzer v. Petrie which is a common example of a straightforward appeal, involving another type of dispute often resolved through summary judgment – a real estate deal that failed to close. As noted in Switzer, the Superior Court judge hearing the motion is “entitled to proceed on the basis that the parties have put into the record all of the evidence that would be forthcoming at trial.”
Another expression frequently used by judges who may play bridge is that “the respondent must lead trump or risk losing.”
This puts a heavy burden upon respondents. In Switzer, the failure to lead expert evidence on the market value of the property on resale, or evidence as to the inadequacy of the vendors’ resale efforts was fatal to the respondent buyers’ arguments on damages. Where there is not discovery evidence, then cross-examination upon the affidavits of the plaintiff’s witnesses is crucial to at least raise a real issue of credibility that requires a trial. In other contexts, competing affidavits may raise the credibility flag, but to do so, there must be more than bare allegations, or assertion of a legal position.
There must be material facts put in dispute that go to the heart of the issue. You don’t say simply “this was an improvident sale”, you show WHY it was improvident, through evidence.
Even then, the motions judge has wide powers to weigh evidence, or even conduct a mini-trial, for instance to resolve a single issue, and avoid the delay and expense of trial.
There will always be cases that require trials, but over the last decade, the willingness of courts to decide cases on summary judgment has expanded, and respondents need to take them seriously.
WHAT WEILERS LLP CAN DO FOR YOU
Part of our proud tradition is remaining current on developments in the law. We pair that with a progressive approach, using the tools available, whether or not summary judgment is suitable. Where summary judgment is suitable, we know how to help put your best foot forward. We are serious lawyers. If that is what you are looking for, give us a call. We may be the right lawyers for you.