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Summary Judgment Motions – A Cautionary Tale

A cautionary note for counsel considering a motion for summary judgment from Justice Mark L. Edwards of the Superior Court in Newmarket in Mak (Estate) v. Mak, 2019 ONSC 2710 (CanLII).  Summary judgment is available where the motion materials enable the motions judge to find that there is no genuine issue for trial (Hyrniak v. Mauldin, 2014 SCC 7).

In Mak, Justice Edwards notes the voluminous amount of materials provided:

[12] In this case, the record before the court involves various motion records, supplementary motion records, and further supplementary motion records, which contain in excess of 30 affidavits. As well, there are various transcripts of the cross-examinations conducted of the various affiants, together with hundreds of pages of documents.  The totality of the motion material occupies two banker’s boxes.  The Plaintiff filed a factum containing 27 pages of factual and legal submissions, while the Defendants filed a factum containing 49 pages of factual and legal submissions.

In a very thorough decision Justice Edwards implores counsel to use common sense and recognize the task facing the Court when considering a motion for summary judgment:

[19]  The actual hearing of the motion for summary judgment may only take a day. The preparation for the motion for summary judgment, including the drafting of affidavits; the preparation for and attendance at the cross-examinations of the deponents to those affidavits; and the preparation of factums, are time consuming and expensive. One may seriously question, on the facts of this case, like many that the court sees, whether that time and effort represents much in the way of any saving for the litigants.  Certainly, if the motion is unsuccessful, there has been unnecessary delay and expense in getting the case to trial.

[20]  What is also lost on the litigants is that, after the motion has been heard, the motion judge then has the responsibility of sifting through a mountain of paper.  The motion may have been argued in a matter of hours, but the motion judge’s job is far from over. Put also in the context that many judges are circuiting from courthouse to courthouse with ever changing assignments, it is not always possible to release a judgment in the time expected by the litigants. Where the court is confronted with two banker’s boxes of material as was the case before me, counsel and their clients should seriously consider if the case is one where the court can truly conclude that there is no genuine issue for trial. Some may argue that regardless of the volume of material, it is still possible, after argument and time, to reflect that the court can do justice to the principles laid down in Hryniak.  I entirely disagree. With the pressures imposed on the court by R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 S.C.R. 631, it will be a rare case that a motions judge in a busy centre such as Newmarket, can dedicate the time necessary to review two banker’s boxes of material before moving on to various criminal trials previously assigned in that judge’s calendar.

[21]  The volume of material that was filed in this case, in my view, should have made it self-evident to the parties and their counsel that this was not the kind of case that was suitable for a motion under Rule 20.  There are serious credibility issues between the parties and the various witnesses that make this case an obvious case where the court cannot be satisfied that it can reach a fair and just determination.  The motion is dismissed.

In my experience when it comes to motions and conferences presiding judges appreciate the “less is more” approach. Their working conditions are less than ideal. Recognizing these challenges by assisting the Court as much as possible is a central element of good advocacy in today’s justice landscape.

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