The Court stated that its "decision marks a new departure and a fresh approach to the interpretation and application of the amended Rule 20" [para. 35] and confirmed that: "[t]he amendments to Rule 20 are meant to introduce significant changes in the manner in which summary judgment motions are to be decided" [para. 36]
The 2010 amendments to the summary judgment rule gave motion court judges expanded powers to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence in determining whether there is a genuine issue requiring a trial (rule 20.04(2.1)), and to order the presentation of oral evidence for the purposes of exercising those powers (rule 20.04(2.2)).
The Court went on to state:
[38] However, we emphasize that the purpose of the new rule is to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court. [emphasis added]
[39] Although both the summary judgment motion and a full trial are processes by which actions may be adjudicated in the "interest of justice", the procedural fairness of each of these two processes depends on the nature of the issues posed and the evidence led by the parties. ...This pivotal determination must be made on a case-by-case basis.
The Court then set out a new "full appreciation test" for determining whether or not summary judgment should be granted and provided the hallmarks of the type of cases in which, generally speaking, the full appreciation test may be met and those in which the test will not be met.
[50] ... In deciding if these powers [in rule 20.04(2.1)] should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?[emphasis added]
[51] We think this "full appreciation test" provides a useful benchmark for deciding 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.
[52] 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.
The Court also discussed the limits on the discretion of the motion judge to order oral evidence under rule 20.04(2.2) and the circumstances in which it will be appropriate to make a rule 20.04(2.2) order.
[61] ...the motion judge may receive oral evidence to assist in making the determination whether any of the issues raised in the action require a trial for their fair and just resolution. ...however, we stress that the power to direct the calling of oral evidence under rule 20.04(2.2) is not intended to permit the parties to supplement the motion record. Nor can the parties anticipate the motion judge directing the calling of oral evidence on the motion.
[103] While we do not wish to be taken as establishing an exhaustive list of when a judge may choose to make a rule 20.04(2.2) order, such an order would be appropriate where:
(1) Oral evidence can be obtained from a small number of witnesses and gathered in a manageable period of time;
(2) Any issue to be dealt with by presenting oral evidence is likely to have a significant impact on whether the summary judgment motion is granted; and
(3) Any such issue is narrow and discrete—i.e., the issue can be separately decided and is not enmeshed with other issues on the motion.
The Court identified three types of cases that are amenable to summary judgment:
- where the parties agree to submit their dispute to resolution by way of summary judgment;
- where the claim or defence has no chance of success; and
- where the motion judge is satisfied that the issues can be fairly and justly resolved by exercising the powers in rule 20.04(2.1). [paras. 40-44; 72-74]
The Court noted that the list was not meant to be exhaustive. The Court emphasized the following:
[75] ...The important element of the analysis under the amended Rule 20 is that, before using the powers in rule 20.04(2.1) to weigh evidence, evaluate credibility, and draw reasonable inferences, the motion judge must apply the full appreciation test in order to be satisfied that the interest of justice does not require that these powers be exercised only at a trial.
The Court also confirmed that the established principles regarding the evidentiary obligations on a summary judgment motion continue to apply under the amended summary judgment rule with the following added caveat regarding the timing of the motion.
[57] However, we add an important caveat to the "best foot forward" principle in cases where a motion for summary judgment is brought early in the litigation process. It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.
[58] Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial. As we point out below, at para. 68, counsel have an obligation to ensure that they are adopting an appropriate litigation strategy. A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.
A full copy of the decision is available on the Canadian Legal Information Institute website.
