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When the Rules of Civil Procedure came into effect in 1985, they heralded a new approach to the use of summary judgment. A procedure that had previously been available only to Plaintiffs and only in claims that were specially endorsed was now, under Rule 20, available to either party and the responding party was warned that it could not rest on the allegations in the pleadings but must set out “specific facts showing that there is a genuine issue for trial.”

It was not long before the significance of this language was recognized. In Vaughan v.Warner Communications Inc. (1986), 56 O.R. (2d) 242 (H.C.J.) Boland J. stated that the Court now had a duty to take “a hard look at the merits” of the claim or defence:

“The specific changes to the summary judgment rule and the spirit in which other rules are changed indicates in my respectful view that Rule 20 should not be eviscerated by the practice of deferring  actions for trial at the mere suggestion that further evidence may be made available or that the law is in a state of confusion. The responding party has a positive responsibility to go beyond mere supposition and the court now has the duty to take a hard look at the merits of an action at this preliminary stage.”

In Greenbaum v. 619908 Ontario Ltd. (1986), 11 C.P.C. (2d) 26 (H.C.J.) Sutherland  J. made the important point that Courts could now approach summary judgment motions with less concern than in the past, as the Rules ensured there would be a more complete evidentiary basis for deciding the motion. In 209991 Ontario Ltd. v. C.I.B.C. (1988), 24 C.P.C. (2d) 248 (H.C.J.) in referring to the reach of Rule 20, Anderson J. stated:

“As a matter of present impression, I see nothing in the language of the rule, or in the review of the law contained in Vaughan, to suggest any clear or arbitrary limit, although it seems safe to say that, where there are contested issues of fact involving the credibility of witnesses, the only appropriate forum remains a trial court. A lawyer or a Judge schooled in the tradition that almost any substantial issue was to be determined at trial requires a material change in attitude to give appropriate effect to the rule.”

In Masciangelo v. Spensieri (1990), 1 C.P.C. (3d) 124 (H.C.J.), the Plaintiff claimed against his solicitor for misrepresentation and misappropriation of funds. The Plaintiff’s evidence was inconsistent with the documentary evidence and his cross-examination revealed material inaccuracies and inconsistencies. Faced with a motion for summary judgment, Doherty J. (as he then was) also had occasion to comment on the reach of Rule 20:

“The suitability of a summary procedure where the dispute is fact-bound raises difficult problems. Factual disputes come in a wide variety of forms. There may be disagreement as to primary facts, or as to the inferences to be drawn from those facts, or both. The resolution of factual issues often, but not always, requires determinations as to credibility. I am concerned in this case with the most basic form of factual dispute: a disagreement as to the primary facts which are at the heart of the lawsuit, the resolution of which requires an assessment of the credibility of the competing parties and a choosing between two diametrically opposed versions of the main events. To put it bluntly, in order to give summary judgment in favour of the Spensieris, I must conclude that Mr. Masciangelo cannot be believed.

Where the outcome of a lawsuit hinges on the assessment of credibility, a trial in which evidence is called and the competing stories are told and challenged before the trier of fact has traditionally been viewed as the ideal forum. This is so, not only because the trier of fact has the advantage of hearing and seeing the witnesses, but also because the parties are given their day in court during which they have the opportunity to present their entire case, face their judge, and tell their story. The quality of justice is measured not only by the accuracy of the result reached but by the way that result is reached. That quality may suffer if litigants are judged unworthy of belief by someone who has never seen them or heard them, but instead has examined only written material.”

Perhaps the most comprehensive analysis was made by Henry J. in Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 225 (Gen. Div.), who granted summary judgment in a case involving claims of breach of a non-competition agreement and breach of fiduciary duty. He said:

“In my opinion, there is a lower threshold that is contemplated by the new Rule 20 and the case law developing. It is that the Court, in taking a hard look at the merits, must decide whether the case merits reference to a judge at trial. It will, no doubt, have to go to trial if there are real issues of credibility, the resolution of which is essential to determination of the facts. That aside, however, the rule now contemplates that the motions judge will have before him sworn testimony in the affidavits and other material required by the rule in which the parties put their best foot forward. The motions judge, therefore, is expected to be able to assess the nature and quality of the evidence supporting ‘a genuine issue for trial’; the test is not whether the plaintiff might possibly succeed at trial; the test is whether the court reaches the conclusion that the case is so doubtful that it does not deserve consideration by the trier of fact at a  future trial; if so, then the parties ‘should be spared the agony and expense of a long and expensive trial after some undetermined wait’ (per Farley J. in Avery.)”

While the Court of Appeal had said in Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545 (C.A.) that genuine issues of credibility required a trial for resolution, the prevailing approach was set out in these High Court decisions: the Court had a duty to take a hard look at the merits and to screen out those cases that were not deserving of a full trial. It was not until a series of decisions written by Borins J.A. in 1998 and 1999 that the Courts turned back from this approach. In Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 (C.A.), the Court said that the proper role of a judge hearing a motion for summary judgment was not to assess credibility, weigh the evidence or find the facts, but rather to make the narrow determination of whether a genuine issue for trial exists. In Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), the Court elaborated on the point: “If there is a genuine issue with respect to material facts then, no matter how weak, or how strong, may appear the claim, or the defence, which has been attacked by the moving party, the case must be sent to trial. It is not for motions judge to resolve the issue.” A year later, in Kilpatrick v. Peterborough Civic Hospital (1999), 44 O.R. (3d) 321 (C.A.), a wrongful dismissal case, the Court came to the surprising conclusion that summary judgment was not appropriate even though the parties had consented to its use for the purpose of determining the reasonable notice period.

With these decisions in hand, bringing a motion for summary judgment was not for the faint of heart, particularly in light of Rule 20.06(1), which provided that costs were to be awarded on a substantial indemnity basis if the motion was unsuccessful. Along came the 2007 Osborne Report on Civil Justice Reform and a return back towards the more ambitious approach to the use of the summary judgment procedure. Following extensive consultation with the Bench and bar, Justice Osborne made the following important comments:

“There was general agreement that rule 20 is not working as intended. Both lawyers and Superior Court judges said that the Court of Appeal’s view of the scope of motion judges’ authority is too narrow. Whether this view is correct can be debated. Whether it exists is beyond debate. The cost consequences from a failed summary judgment have also been said to be too onerous, deterring many litigants and their counsel from using rule 20…

Quite apart from whether any rule 20 change is made, there was a clear call during consultations for an expedited mechanism for the resolution of straightforward disputed facts, other than a full trial. This is the mini-trial option. The mini-trial, with viva voce evidence, would be heard by the same judge hearing the summary judgment motion. I note that rule 20.05 already allows for a ‘speedy trial’ of an action, in whole or in part, where summary judgment is refused; however, the speedy trial provisions of rule 20 appear not to be used with any regularity…

If the objective is to provide an effective mechanism for the court to dispose of cases early where in the opinion of the court a trial is unnecessary after reviewing the best available evidence from the parties, then it seems to me to be preferable to provide the court with the express authority to do what some decisions of the Court of Appeal have said a motion judge or master cannot do. That is, permit the court on a summary judgment motion to weigh the evidence, draw inferences and evaluate credibility in appropriate cases. Therefore, any new rule 20 should provide a basis for the motion judge to determine whether such an assessment can safely be made on the motion, or whether the interests of justice require that the issue be determined by the trier of fact at trial.”

Based on these recommendations, Rules 20.04(2.1) and (2.2) were enacted. They provide:Rule 20.04(2.1) “In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence.” Rule 20.04(2.2) “A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on the presentation.” These rules make it clear that judges now have the jurisdiction to decide cases on the basis of a paper record, or with limited oral evidence, if this can safely be done without the necessity of a trial. Rule 20.06 was also amended to remove the presumption of substantial indemnity costs if the motion is unsuccessful. Substantial indemnity costs can now be ordered if a party acted unreasonably by making or responding to the motion, or acted in bad faith for the purpose of delay.

In my view, these expanded powers are tailor made for the prosecution of long-term disability claims. Before setting out this view, it is worth examining how the rules have been applied since their introduction on January 1, 2010.

In Zurba v. Lakeridge Health Corp., 2010 ONSC 318 (S.C.J.), Lawuers J. acknowledged the significance of the amendments to Rule 20 but held that it was not appropriate to summarily dismiss a medical negligence claim alleged to have been commenced out of time given conflicts in the evidence. He said:

“The factual issue as to the appropriate date of discoverability is one which ought to be tried and, per Aguoniesupra, on the facts before me the outcome is not so certain that I am willing to rule definitively among the alternatives of October 17, 2003, June, 2004, or June, 2006, despite the amendments to Rule 20. I find that this is not a case in which it is in the interest of justice for me to exercise the powers under Rule 20.04(2.1). It would be more consistent with the interest of justice for such powers to be exercised at a trial when credibility can be assessed. That assessment of the evidence requires live witnesses in a trial context.”

In Lawless v. Anderson, 2010 ONSC 2723 (S.C.J.), which also involved an issue of discoverability in a medical negligence claim, Brown J. took a different view and decided that summary judgment was appropriate to dismiss the action that was statute barred. He said:

“The radical change introduced by the New Rule 20 was to arm judges with greater powers in performing their review of the evidence. No longer is the motion judge confined to identifying whether disputed material facts exists. Rule 20.04(2.1) enables the judge to resolve disputed facts by weighing evidence, evaluating credibility and drawing reasonable inferences from the evidence. In a very real sense Rule 20.04(2.1) vests in a motion judge the powers typically exercised by a trial judge…

Rule 20.04(2.2) further enhances the powers of the motion judge by enabling the court, for the purposes of weighing evidence, assessing credibility or drawing inferences of fact, to ‘order that oral evidence be presented by one or more parties, with or without time limits on its presentation.’ Although the purpose of this “mini-trial” is to determine whether any genuine issue requiring a trial exists, I suspect that as a practical matter an ordered “mini-trial” most often will constitute the final trial of the proceeding.

Of course, these enhanced powers of a motion judge are not without limit. Rule 20.04(2.1) makes it clear that a judge should not exercise the expanded powers where ‘it is in the interest of justice for such powers to be exercised only at a trial’. The quality of the record on a summary judgment motion and a number of other case-specific factors likely will guide judicial discretion in assessing whether a fair, final disposition of a proceeding can occur using a summary judgment motion record, including a hybrid record of written and viva voce evidence, or whether justice and fairness necessitates traversing the matter to a full trial.

Finally, one likely consequence of the new powers exercisable by a motion judge will be an enhanced ability to determine discoverability issues on summary judgment motions because the fact-finding restrictions placed on judges under Old Rule 20 have been removed, or at least very significantly loosened.”

In Healey v. Lakeridge Health Corporation, 2010 ONSC 725 (S.C.J.) in characteristically thorough reasons for judgment, Perell J. granted partial summary judgment in a class action involving claims for psychiatric illness. He said:

“Since the introduction of the summary judgment rule, the courts have struggled with finding a balance between a day in court by a summary judgment motion or by a trial hearing. To go back to the insights of Justice Morden in Irving Ungerman Ltd. v. Galanissupra, sometimes a trial is necessary to provide procedural and substantive justice, but sometimes, a trial is unnecessary and requiring one would be a denial of procedural justice. This insight suggests that a factor in interpreting and applying the new rules about summary judgment is the determinant of whether a trial is genuinely necessary, not because it is to be given some preferred status in the administration of justice, but because the issues to be resolved cannot be truthfully, fairly, and justly resolved without the forensic machinery of a trial.

It is informative to note that rule 20.04 (2.1) envisions that the motions judge may use the powers of a trial judge unless it is in the interest of justice for such powers to be exercised only at a trial. The reference to the interests of justice suggests that the motions judge will have to assess whether the search for truth and justice requires the forensic machinery of a trial. To go back again to the language of Justice Morden in Irving Ungerman Ltd. v. Galanis, the motions judge will have to determine whether the particular proceeding in which a summary judgment is sought is one where requiring the parties to go to trial would be a failure of procedural justice because the holding of a trial is unnecessary.

Put into practical terms, these insights mean that having regard to the new powers to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, the moving party must provide a level of proof that demonstrates that a trial is unnecessary to truly, fairly, and justly resolve the issues.

In this regard, it is important to precisely identify the issues to be resolved because the nature of the particular issues to be resolved both qualitatively and quantitatively will be relevant to determining whether a trial is necessary. For example, to resolve some issues, it may be necessary for a judge to have the opportunity to directly observe, hear, and question a witness. Or, for example, an action may turn on credibility and a transcript of evidence along with the documentary evidence may not – in the particular circumstances of the case – be adequate for the court to evaluate credibility. In such a case, there would be a genuine issue requiring a trial or there would be the need to resort to the court’s new powers to order evidence to be called as a part of the summary judgment procedure. But, in another case, the issues may be such that the motions judge could decide the credibility issue on the motion for summary judgment.

As I will explain later in these Reasons for Decision, it is my opinion that there are genuine issues requiring a trial about the causation-in-fact of psychological injuries and about the assessment of damages. Trials will not disappear under the new regime. The determinant will not be whether a litigant wants a trial but whether a litigant needs one to obtain substantive and procedural justice.
I appreciate that this approach of focusing more attention on the issue to be determined and on what ‘requiring a trial’ means is not a bright line test like the one that existed before, where a judge would know that there was a genuine issue for trial because he or she could not decide the matter without some weighing of the evidence. But the certainty of the old rule was intellectually dishonest because weighing evidence is unavoidable and occurs in the very act of determining whether it requires to be weighed.”

Having regard to these decisions and prior jurisprudence unde Rule 20, it can be said with confidence that cases involving genuine issues of credibility will require a trial. In the context of the evidence typically available in a long-term disability claim, however, it seems to me that the issues will be well suited for determination on a motion for summary judgment, particularly given the expanded powers under Rule 20. It can be expected that, at the date of commencement of an action, a claimant is likely to have available an attending physicians statement, supportive medical reports and perhaps clinical notes and records. An insurer might have available a paper review of the file and perhaps an independent medical assessment. Unless there are substantial disagreements as to the primary facts or strong reasons to doubt the credibility of the Plaintiff, a judge should be well able to resolve any disputed factual issues by weighing the evidence, drawing inferences or evaluating credibility.

The ability to move an action forward to early resolution by way of a motion for summary judgment is an enormous advanatage to Plaintiffs likely to be in dire need of disability benefits. Given that Courts have declined to accede to motions for an injunction for the payment of benefits on an interim basis, it seems to me that the summary judgment procedure now offers a potent weapon in the litigation arsenal. It is to be hoped that counsel will take advantage of this important procedural device in appropriate cases.

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