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Summary Judgment - Practice

. 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.

. 790668 Ontario Inc. v. D'Andrea Management Inc.

In 790668 Ontario Inc. v. D'Andrea Management Inc. (Ont CA, 2015) the Court of Appeal expressed caution about the suitability of summary judgment motions to address third party claims (the caution appears equally appropropriate wherever hearing of the primary action is required to inform the court of key facts, such as with counterclaims and crossclaims):
[11] The appellants point out that although this court noted in Hamilton, at para. 18, that summary judgment can be available in the case of third party claims, the court was cautious, citing the reasoning in Bongiardina v. York, (Regional Municipality) (2000), 2000 CanLII 5408 (ON CA), 49 O.R. (3d) 641 (C.A.), where the court said, at para. 15:
There might well be cases in which it would be inappropriate to bring a motion for summary judgment in respect of a third party claim. For example, if the third party claim could not be resolved without detailed knowledge of the factual circumstances that gave rise to the main action, a motion for summary judgment would be premature.
. Hunter-Rutland Inc. v. Huntsville (Town)

In Hunter-Rutland Inc. v. Huntsville (Town) (Ont CA, 2015) the Court of Appeal upheld the motion judge below who, when faced with a summary judgment motion by the defendant but none by the plaintiff, granted summary judgment to the plaintiff:
[5] First, there was nothing wrong with the motion judge granting judgment in favour of HRI in all the circumstances of this case. Had HRI brought its own motion for summary judgment, it is difficult to see how the argument and evidence would have been different given the scope of the issue involved. The jurisprudence supports the conclusion that a motion judge, on summary judgment motions, has the power to grant judgment for or against the moving party: see Whalen v. Hillier (2001), 2001 CanLII 24070 (ON CA), 53 O.R. (3d) 550 (C.A.).
. 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, ....


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