Summary Judgement Principles

Summary Judgement Principles

Summary Judgment Principles were discussed in Winter v Sherman 2017 ONSC 5492

[25]           Summary judgment is available where there is no genuine issue for trial: Hyrniak v. Mauldin, 2014 SCC 7 (CanLII), 366 D.L.R. (4th) 641, at para. 34.

[26]           The court will find that there is no genuine issue requiring a trial when it is able to reach a fair and just determination on the merits.  The motions judge should determine if there is a genuine issue requiring a trial based only on the evidenece before her, without using the fact-finding powers in Rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:  Hyrniak, at paras. 49 and 66.

[27]           The standard for a “fair and just determination” is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.  The evidence need not be equivalent to that at trial but must be such that the judge is confident that she can fairly resolve the dispute: Hyrniak, at paras. 50 and 57.

[28]           On a summary judgment motion, the court is entitled to assume that the parties have advanced their best case and that the record contains all of the evidence the parties would present at trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (CanLII), [2014] O.J. No. 851, at para. 33.

[29]           While summary judgment can operate as a timely, fair, and cost-effective means of adjudicating a civil dispute, it has its limits.  Not all civil disputes are amenable to a final adjudication on the merits by summary judgment.  In certain cases, adjudication exclusively on a written record poses a risk of substantive unfairness.  Great care must be taken 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”: Baywood Homes Partnerships v. Haditaghi, 2014 ONCA 450 (CanLII), 120 O.R. (3d) 438, at para. 44; see also Cook v. Joyce, 2017 ONCA 49 (CanLII), 275 A.C.W.S. (3d) 399, at para. 91.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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