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Summary judgment post COVID-19: Interpretive erosion and looking ahead

Tuesday, October 27, 2020 @ 10:58 AM | By Stephen Ross and Gemma Healy-Murphy


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Stephen Ross
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Gemma Healy-Murphy
The success of summary judgment post-Hryniak (Hryniak v. Mauldin 2014 SCC 7) has been further hindered by what is commonly known as interpretive erosion.

The onus on motion for summary judgment is that each party put its “best foot forward” and “lead trump or risk losing.” The motions judge is entitled to assume she or he has all the evidence that would be available at trial.

This presumption has also often been honoured in the breach post-Hryniak (and pre-pandemic) since, at least in the area of personal injury law and insurance law, parties are often given a second or even third kick of the can.

Often, “missing” evidence has been the basis for which the Ontario courts have declined to order summary judgment.

In Cartini v. Square One Ltd. 2016 ONSC 8151, the defendant landlord moved for summary judgment with expert evidence that the parking lot was safe and in compliance with all legal requirements. The plaintiff elicited no expert evidence and, despite the urging of the judge, did not amend the claim to particularize her alternative “unsafe shopping cart” theory.

At the second attendance, the plaintiff, who led no evidence on the theory, was given a third kick at the can to present a case that there was a triable issue with respect to her still unparticularized “unsafe shopping cart” theory. The matter was sent back to pleadings stage on that issue and the summary judgment motion was dismissed.

In Efremova v. Spadaccini 2016 ONSC 7848, the plaintiff was found to be in “bare compliance” with her duty to put her best foot forward but when she pointed to “missing” evidence, in the form of a “doggy DNA test” to identify the dog that bit her, the defendant’s motion for summary judgment was dismissed citing a genuine issue for trial.

In Rego v. Walmart 2017 ONSC 2599, the defendant moved for summary judgment and tendered video evidence of the plaintiff’s fall. Dozens of people were seen walking over the impugned area of the floor both before and after the fall. Three employees swore affidavits to establish that there was nothing on the floor where the plaintiff fell. The plaintiff conducted no cross-examinations of those witnesses.

At the motion, the plaintiff alleged that a trial was nevertheless necessary in part because the so-called “CCTV operator” was a relevant witness (missing evidence) whose evidence was “necessary” for proper adjudication. The motion was dismissed on the basis of this and other similar “missing” evidence. Leave to appeal was denied by the divisional court.

It is submitted that moving forward, the courts will need to take a distinct step back from providing parties multiple chances to remedy defects in the evidence. In the coming era of even far greater scarcity of judicial resources, the system may simply not be able to bear it. It may well be necessary to give real and meaningful effect to the “lead trump or lose” principle and the presumption that the motion judge has all the evidence that will be available at trial, if there is any hope to clear the judicial backlog and provide ongoing access to justice.

COVID-19: Not business as usual

In 2015, Justice Frederick L. Myers astutely opined in Anjum v. Doe 2015 ONSC 5501 that “change of the magnitude of a ‘culture shift’ is not business as usual” (see para. 28).

The wheels of justice move slowly and it is only now, over six years later and in response to a worldwide pandemic, that the Ontario courts appear ready to embrace the culture shift envisioned by the Supreme Court of Canada to fix Ontario’s “broken” civil justice system.

The court has already seen the advantages of requiring litigants to use virtual means to comply with procedural timelines, produce documents, engage in examinations for discovery and cross-examinations, and attend pretrials, case conferences, hearings and even trials.

In fact, the court has encouragingly commented that “virtual hearings are likely to retain a permanent place in the judicial tool box” (see Scaffidi-Argentina v. Tega Homes Developments Inc. 2020 ONSC 3232, para. 1).

Notably, in Arconti v. Smith 2020 ONSC 2782 at paras. 19 and 33, Justice Myers opined that “in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts.” Further, Justice Myers commented that “we now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”

The court also now seems prepared to take the necessary steps to reduce its backlog and deliver timely access to justice. In Blaese v. Metcalfe 2020 ONSC 2437, Justice Mark L. Edwards indicated that an amendment to the Rules of Civil Procedure, giving the court the discretion to bifurcate issues of liability and damages absent the consent of the parties, is something that the Civil Rules Committee may wish to consider.

Moving forward, we are hopeful that in its evaluation of the tools and processes available to ensure access to justice, the courts will also breathe new life into the summary judgment process in the various ways described above. It is the authors’ view that an actual Hryniak­-like summary judgment process should be added to the “judicial toolbox” to meet the challenges of the post-pandemic era.

The judiciary should now be encouraged, or even required, to embrace summary judgment in the manner they were asked to by the Supreme Court of Canada in 2014. We are optimistic that this will be the case as this trend is already emerging in the case law.

In Scaffidi-Argentina v. Tega Homes Developments Inc., Justice Calum U.C. MacLeod revisited his pre-pandemic refusal to schedule a motion for summary judgment and granted the scheduling request, given that the trial of the action would be at least a year away post-pandemic.

Justice Alex Pazaratz reviewed the Superior Court Protocols and Notices to the Profession issued during the COVID-19 pandemic in CCAS v. I.B. et al 2020 ONSC 3220, a child protection case. In ordering that a summary judgment motion proceed via videoconference over two full days, Justice Pazaratz dismissed concerns that the motion was too complicated to proceed by Zoom videoconference.

As stated by Justice Myers in Arconti when addressing the use of technology, “we should not be going back.” Time will tell whether the court’s recent and ongoing technological revolution will provide the courts with the “judicial toolbox” necessary for a revamped summary judgment process. We do hope it will.

This is part two of a two-part series. Part one: Summary judgment post COVID-19: Movement toward increased access to justice?

Stephen Ross is a partner at Rogers Partners LLP. His practice involves civil litigation matters related to insurance law, the defence of personal injury actions and medical-legal issues. Gemma Healy-Murphy is an associate with Rogers Partners LLP in Toronto. Healy-Murphy has a diverse civil litigation practice; she defends insurers, corporations and individuals in claims arising from personal injury, wrongful death, property loss and professional negligence.

Photo credit / PierreDesrosiers ISTOCKPHOTO.COM

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