Summary judgment is available to both plaintiffs and defendants, and the court shall grant summary judgment if it is “satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” (Rule 20.04(2)(a)) In 2011, the Ontario Court of Appeal handed down a decision reformulating and clarifying the appropriate test to be used on a motion for summary judgment, in its decision Combined Air Mechanical Services Inc. v Flesch, 2011 ONCA 764. In this case, the Court of Appeal adopted the “full appreciation test” to allow a motions judge to determine whether or not a trial is required in the interest of justice:
In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.
In contrast, in document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues. The full appreciation test may also be met in cases where the record can be supplemented to the requisite degree at the motion judge’s direction by hearing oral evidence on discrete issues. (Paras. 51-52)
In Baywood Homes, Justice Belobaba wrote that the “full appreciation test” shifts the focus from “issues requiring a trial to concerns about the number of witnesses and the volume of filed material.” In his Honour’s opinion, the Court of Appeal “unintentionally provided responding counsel with a game-winning strategy: overwhelm the motions judge with a voluminous amount of material, throw in some references to the ‘interests of justice’ and he or she may happily take Exit 51 and send the case to trial.”
In the context of the Baywood Homes case, Justice Belobaba’s comments made sense. The motion record before him was approximately 1,900 pages long, including 11 affidavits, more than 500 pages of cross-examination transcripts, a 45-page index of correspondence between legal counsel, lengthy factums, a cast of characters, a 16-page chart illustrating the chronology of events, and an 18-page chart from the respondents listing more than 90 examples of factual disputes in the affidavit evidence. His Honour stated: “It would have been very easy for me to dismiss this motion for summary judgment and send the matter to trial.”
Instead, Justice Belobaba investigated the matter further, and held a mini-trial to hear oral evidence from the parties. In the end, his Honour granted the defendant’s summary judgment motion to dismiss the plaintiff’s claim in part, but dismissed the defendant’s summary judgment motion on its counter-claim, instead ordering that it proceed to a full trial. The lesson from this case, according to Justice Belobaba, is that motion judges should not be too quick to grant or dismiss motions for summary judgment. In addition, counsel should focus on the essential elements of the summary judgment test, namely whether there is a genuine issue for trial rather than getting crafty in light of the Court of Appeal’s full appreciation test.