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Civil Litigation Dicta - Summary Judgment versus Applications. Maurice v. Alles
In Maurice v. Alles (Ont CA, 2016) the Court of Appeal held that the R20 summary judgment procedures were not normally available in the context of an application, as opposed to an action. Here however the hearing judge's ruling granting summary judgment below was upheld nonetheless as an inconsequential procedural irregularity. The case stands for the proposition that any application seeking this remedy should be first converted to an action:[25] Generally, a party who has participated in a process in the court below without complaint cannot object to that process on appeal: Harris v. Leikin Group Inc., 2014 ONCA 479 (CanLII), 120 O.R. (3d) 508, at para. 53; see also Marshall v. Watson Wyatt & Co. (2002), 2002 CanLII 13354 (ON CA), 57 O.R. (3d) 813 (C.A.), at paras. 14-15. I nonetheless think it is important to address the issue of the availability of a summary judgment motion on an application under Rule 14, especially given the increased prevalence and importance of summary judgment motions since the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87.
[26] The parties have brought one relevant decision to our attention. In Essex Condominium Corp. No. 5 v. Rose-ville Community Center Assn. (2007), 51 C.P.C. (6th) 89 (Ont. S.C.), Pomerance J. held that summary judgment was not available in the context of an application to wind up a corporation under the Corporations Act, R.S.O. 1990, c. C.38.
[27] Similarly, in Ravikovich v. College of Physicians & Surgeons (Ontario), 2010 CarswellOnt 6643 (S.C.), Ferrier J. concluded that summary judgment is not available in a judicial review application because the remedy is only available for actions and an action is a proceeding that is not an application.
[28] I agree with the analysis of the issue in both cases, .... . Zaidi v. Syed Estate
In Zaidi v. Syed Estate (Ont CA, 2024) the Ontario Court of Appeal considered an appeal argument that the trial judge erroneously proceeded with summary judgment, where a full trial should have been held instead:(2) Alleged Failure to Direct a Trial
[23] As his second ground of appeal, Mr. Zaidi argues that the application judge ought not to have granted summary judgment because there were factual issues in dispute that depended on an assessment of credibility for their determination. He points to the application judge’s observation at para. 18 of the reasons that “[w]ith these many contentious issues of fact and of credibility, a case like the case at bar typically would be both inappropriate for an application and also inappropriate for a motion for a summary judgment”.
[24] There is no merit to this submission. After making this observation, the application judge went on to explain that (1) it was not necessary on the major issues to make findings of credibility or to choose between the competing versions of events in order to decide the case; and (2) he agreed with the parties that the case could be fairly resolved summarily. What is key is that Mr. Zaidi had commenced an application seeking to enforce the settlement, and that neither party had sought the trial of an issue. Indeed, both sides urged the application judge to determine the case summarily and they indicated that no more evidence would be called if the matter went to trial.
[25] We agree with Ms. Naqvi that, having chosen to proceed in this manner, Mr. Zaidi cannot now complain that it was inappropriate for the application judge to determine the matter as though there were competing motions for summary judgment: Voreon Inc. v. Matas Management Services Inc., 2023 ONCA 745, at para. 37. In any event, there is no reason to interfere with the application judge’s assessment that the matter was suitable for summary determination. This determination is entitled to deference on appeal, in the absence of an extricable error in principle, or a palpable and overriding error: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 30. No such error has been demonstrated here.
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