Judges grill lawyers on summary judgment limits

Photo: Peter Jones/Reuters

Chief Justice Warren Winkler, seen in this file photo, questioned lawyers whether the summary judgment procedure actually saves time and money. "No one here is telling us these summary judgment motions are cheap."

Drew Hasselback  Jun 23, 2011 – 4:06 PM ET | Last Updated: Jun 24, 2011 6:35 AM ET

A group representing trial lawyers questions whether a liberal interpretation of Ontario’s new summary judgment rule actually will make it easier for litigants to get faster access to justice in the province’s court system.

“We can’t get too hung up on efficiency, speed and expedition at the expense of justice,” said Allan Rouben, counsel for the Ontario Trial Lawyers Association.

His point was questioned by Mr. Justice Robert Sharpe, who asked whether it is possible to get justice without the need for a trial. “Do you accept that?”

“Absolutely,” Mr. Rouben replied, though he added that there are instances where summary judgment may not work, such as complex matters involving product liability or professional negligence.

Mr. Rouben also argued that there is a flaw in the argument that summary judgments might save litigants costs. That might be the case if the motion is successful, but he said the procedure has the exact opposite effect if the motion fails and the litigants must then foot the bill for a full-blown trial.

The argument was one of several from five intervenors the Ontario Court of Appeal invited to make submissions at three days of hearings on the use of the province’s new summary judgment rule.

Last year, Ontario amended its court rules to empower judges to make final decisions on lawsuits at an early stage of the proceedings. On what is known as a motion for summary judgment, a judge can now make significant findings of fact. That empowers the judge to decide whether the matter requires a full-blown trial, or whether it can be decided on the bench at the end of the motion.

The court reviewed four matters this week. They represent many of the typical disputes Ontario litigants bring before the courts: a battle over real estate rights, a disagreement over the interpretation of a contract, an attempt by investors recover funds from a fraud, and an allegation of negligence.

The position of the Ontario Trial Lawyers Association differed from that of the other four intervenors who made presentations on Thursday.

The Ontario Bar Association, the County & District Law Presidents Association, the Attorney General of Ontario, and the Advocates’ Society made submissions that were generally supportive of Rule 20.04, the summary judgment provision of Ontario’s Rules of Civil Procedure.

Lawyers for the Advocates’ Society described the new summary judgment procedure as a “highly desirable rule change” and a “terrific advance” that seeks to remedy delays, expense and malaise in the civil justice system.

“We urge a large and liberal interpretation of the rule,” argued David Scott, counsel for the group.

The five-judge bench challenged the lawyers on several points, a sign that shows how the court is trying to figure out whether it should limit the summary judgment power in the series of rulings it will release following this week’s appeals.

Mr. Justice Robert Armstrong wondered about the latitude given to a motions judge to limit the scope of cross-examination in “mini-trials.” This is a new procedure where a judge can ask that live witnesses to attend court during the motion and answer questions to help clarify some facts. Motions are usually argued using only documentary evidence, so judges are empowered to keep a tight rein on what questions can be asked during the procedure to keep summary judgment motions focused. “When I used to be where you are, I didn’t like trial judges getting into that,” Judge Armstrong said as lawyer Patricia Jackson was making arguments on behalf of the Advocates’ Society.

Mr. Justice Paul Rouleau wondered whether a case could become a “train wreck” if parties invest significant cost and time in arguing the motion, only to have the motions judge order that the matter proceed to trial anyway. And Mr. Chief Justice Warren Winkler at several points questioned lawyers on whether motions for summary judgment really are shorter and faster than trials. “No one here is telling us these summary judgment motions are cheap.”

The hearings over and the five-judge panel has reserved its rulings.

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