(picture from Court of Appeal Website)
By Jason Botelho, Associate
In December 2011, the Ontario Court of Appeal rendered a landmark decision in Combined Air Mechanical v. Flesch which sought to provide greater clarity on the recently amended Summary Judgment rule (Rule 20) of the Rules of Civil Procedure. Although the test for summary judgment was similar to the previous one (the test was changed from “no genuine issue for trial” to “no genuine issue requiring a trial”), judges are now allowed to weigh the evidence, evaluate credibility and draw reasonable inferences from the evidence.
The Court of Appeal provided three types of cases that lend themselves to summary judgement motions. They are:
- the parties agree to use summary judgment;
- the claims or defences are without merit; or,
- the motion judge can “fully appreciate” all of the evidence and issues required to make dispositive finding without a trial.
As part of their decision the Court of Appeal established the ‘Full Appreciation Test’ which allows use of the Rule in cases where the judge can fully appreciate the evidence without a trial.
If a judge finds that that they are able to have a full appreciation of the evidence without the necessity of hearing and observing witnesses and having the full experience of the fact-finding process first hand, then the Summary Judgment motion will be appropriate in these instances. The Court of Appeal cautioned motion judges to only use the rule if the judge can fully appreciate the evidence without a trial. Cases which are more reliant on documents than witness testimony would seem to lend themselves more appropriately to this motion.
Remember not all cases are appropriate for the summary judgment motion. It is best to speak with one of the fine lawyers on our litigation team to help clarify all the nuances involved in this and other legal issues.