Although there are serious concerns about some of the CRR’s proposed changes, and about the CRR’s process, most would agree that there are many excellent ideas in this Discussion Paper.
I’ve got a little packet of gold stars for those that make a lot of sense to me, and haven’t been criticized by any of the comments on the CRR that I have seen.
⭐️#1. No More Failed Summary Judgment Motions.
Compared to a trial, a summary judgment motion is a quicker and cheaper path to substantive and fact-based adjudication. Under current Ontario law a summary judgment motion can have three outcomes:
(i) judgment is granted to the party that brought the motion, ending the case (subject to appeal)
(ii) the summary judgment motion “boomerangs” , and judgment is granted to the responding party. This, again, disposes of the case (subject to appeal).
So far so good. Summary judgment has given us a public adjudication based on the facts and law, while saving time and money.
The problem is the third possible outcome:
(iii) summary judgment “fails” — it’s not granted to any party. And so the parties must continue on with the case, perhaps all the way to trial.
In this case, tens of thousands of dollars may have been spent on the motion, especially if it involved the “enhanced” hearing powers under Rule 20.04(2.1) and (2.2). The Supreme Court judgment in Hryniak encourages courts to “salvage” some benefit from failed summary judgment motions, and Rule 20.05 gives the court some powers to do so. But there’s no doubt that a case with a failed summary judgment motion can cost the parties and the system a lot of time and money that would have been saved if no such motion had ever been brought.
The CRR Discussion Paper (at page 52) would “mandate that the presiding judge issue a final decision at the Summary Hearing’s conclusion.” Ordering the case to continue to trial would no longer be an option.
What if the evidence after a summary judgment motion is so weak that deciding the case either way would risk a miscarriage of justice?
The CRR Working Group thought of that. Summary judgment motions would only happen in the first place if a judge, at one of the new Directions Conferences, decides that it would be an appropriate case to be resolved in this way.
This seems to me a sensible way to ensure that summary judgment motions actually are proportionate shortcuts to adjudication, not expensive and time-consuming dead-end detours.
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