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Landmark Court of Appeal Decision Sets New Test for Summary Judgment

Date

December 5, 2011


The Ontario Court of Appeal recently released a decision which makes much of that previous jurisprudence obsolete and creates a new test for determining whether a case is appropriate for summary judgment. The "full appreciation test" requires the court to first decide whether the attributes of the trial process are necessary to fully appreciate the evidence and issues and allow a fair adjudication of the case.

The decision sent the clear message to counsel and litigants in Ontario that while some cases are ideal for summary judgment, others are not. Summary judgment is a powerful tool in the right cases and an inefficient and unjust exercise in other cases. 

The hallmarks of a case that requires a trial are: (1) a voluminous record, (2) a large number of witnesses, (3) different theories of liability advanced against multiple defendants, (4) numerous factual issues, (5) credibility determinations which lay at the heart of the disputes, and (6) an absence of documentary evidence against which to assess the credibility of the witnesses.  

The Ontario Court of Appeal clarified that the purpose of Rule 20 is not to eliminate the plenary trial. It is to enhance access to justice by widening the power of judges to make summary judgments in cases where the evidence and issues do not require the full forensic machinery of a trial to be fairly adjudicated.  

Sarit Batner, a partner in McCarthy Tétrault’s Litigation Group, was counsel for Robert Hryniak, the appellant in two of the cases in question, in this landmark decision of the Ontario Court of Appeal.

For further information about the decision and its implications for the legal system, please contact Sarit Batner, Partner, Litigation. For those interested, Sarit will be speaking on December 6, 2011, at the Law Society of Upper Canada on the subject with the Honorable Justice Susan Lang from the Court of Appeal of Ontario.

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