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In its landmark decision in Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada held that summary judgment offered a viable process for adjudication in many civil claims. The Court overturned the decision of the Ontario Court of Appeal, saying the Court had “placed too high a premium” on the “full appreciation” of evidence to be gained at a trial.

Six months later, the Court of Appeal revisited the subject in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450. The case involved a complex series of real estate transactions, in which the motions judge found that documentation had been falsified by the parties. After conducting a mini-trial, the motions judge found that he was unable to grant summary judgment of the defendant’s claim for the payment of promissory notes, but dismissed the plaintiff’s claim on the basis of a signed release.

The Court of Appeal set aside the decision, holding that the motion judge failed to consider the advisability of granting partial summary judgment in the context of the litigation as a whole. Given the difficulties with the documentary record, it was possible that a trial judge would “develop a fuller appreciation of the relationship and transactional context” than the motions judge. This gave rise to the possibility of inconsistent verdicts.

Writing on behalf of the Court, Justice Lauwers reiterated some of the concerns with the summary judgment process his colleagues had written about in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, the approach from which was overturned by the Supreme Court.

[44]      What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important. Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

[45]       Judges are aware that the process of preparing summary judgment motion materials and cross-examinations, with or without a mini-trial, will not necessarily provide savings over an ordinary discovery and trial process, and might not “serve the goals of timeliness, affordability and proportionality” (Hryniak at para. 66). Lawyer time is expensive, whether it is spent in court or in lengthy and nuanced drafting sessions. I note that sometimes, as in this case, it will simply not be possible to salvage something dispositive from an expensive and time-consuming, but eventually abortive, summary judgment process. That is the risk, and is consequently the difficult nettle that motion judges must be prepared to grasp, if the summary judgment process is to operate fairly.

These comments echo those in Combined Air at para. 49, that “a summary judgment motion is decided primarily on a written record. The deponents swear to affidavits typically drafted by counsel and do not speak in their own words. Although they are cross-examined and transcripts of these examinations are before the court, the motion judge is not present to observe the witnesses during their testimony.” At paras. 65 and 68 of Combined Air, the Court also expressed concern about salvaging a failed motion for summary judgment: “While the court may make use of the provisions in rule 20.05 to salvage the resources that went into the summary judgment motion, the court should keep in mind that the rule should not be applied so as to effectively order a trial that resembles the motion that was previously dismissed…It is important to underscore the obligation that rests on members of the bar in formulating an appropriate litigation strategy. The expenditure of resources, regardless of quantum, in the compilation of a motion record and argument of the motion is not a valid consideration in determining whether summary judgment should be granted.”

It appears the Court of Appeal continues to have reservations about the practicalities associated with the summary judgment process where the facts may render it unsuitable. Litigants would be well advised to carefully consider this in deciding whether to bring a motion in the first place.