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Civil Litigation Dicta - Summary Judgment - Timing of Motion [R20.01]. Castle Building Centres Group Ltd. v. The Rehill Company Limited
In Castle Building Centres Group Ltd. v. The Rehill Company Limited (Ont CA, 2023) the Court of Appeal considers the propriety of bring a summary judgment motion before disclosure:[34] Indeed, the appellants have cited no proposition that would limit the availability of summary judgment when sought prior to discovery. Contrary to the appellants’ submission, r. 20.01 expressly allows a plaintiff to bring a motion for summary judgment as soon as the defendant delivers its pleadings. If the appellants’ complaint was that respondent had not complied with disclosure, then the appellants should have taken steps to compel production: see Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONCA 878, at para. 4. Parties are required to put their best foot forward on a summary judgment motion. This they failed to do. . Prism Resources Inc. v. Detour Gold Corporation
In Prism Resources Inc. v. Detour Gold Corporation (Ont CA, 2022) the Court of Appeal (Lauwers JA) makes some interesting practice observations regarding summary judgment:[4] I observe that none of the facts, the documents, or the evidence are as well-developed as they would have been had Prism’s summary judgment motion been brought after completion of the ordinary discovery process. But r. 20.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits such a motion. Detour criticizes Prism for its spare approach to the evidence, but the Rules provide avenues by which either party, as well-advised as they are, could have put a more robust record before the motion judge, in accordance with their obligation to put their best foot forward. The too-frequent strategy of playing the onuses and burdens in a summary judgment motion often causes remorse. . Avedian v. Enbridge Gas Distribution Inc. (Enbridge Gas Distribution)
In Avedian v. Enbridge Gas Distribution Inc. (Enbridge Gas Distribution) (Ont CA, 2021) the Court of Appeal showed it's annoyance with a summary judgment motion brought after a trial date was set:[14] The motion should not have been permitted to proceed. I draw attention to the “Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region”, (July 1, 2015), s. 69, in force at the time, which provided that “[o]nce trial dates are set, there will be no adjournments of the trial except in extenuating and exceptional circumstances.” There were no extenuating or exceptional circumstances present here. When the motion was brought, Enbridge Inc. was in the same circumstance and possessed the same knowledge as at the time of the March 2018 pre-trial conference before Firestone J. The purpose of the Practice Direction, in this respect, is precisely to avoid this sort of last-minute manoeuvring to the prejudice of other parties. In the result, the motion for partial summary judgment added unnecessary delay, expense, and the squandering of available court time: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 30-31, 34; Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, at paras. 14, 23. . De Melo v De Melo
In the family law case of De Melo v De Melo (Ont CA, 2015) the Court of Appeal considered (and approved) the propriety of bringing a motion for summary judgment when (1) the matter had not yet been the subject of a settlement or trial management conference, and (2) the motion was heard five months before an already scheduled trial. The reasoning is transferrable to the non-family civil context.
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