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Appellate Litigation

One of the most efficient ways of ending litigation is for the defendant to apply for a summary judgment. In cases where the defendant believes there is no legitimate issue to be tried, they can apply to have the cause of action dismissed without the need to go through a full trial.

However, while a court may grant a summary judgment in favour of the defendant, it may also do the opposite, resulting in what has become known as a ‘reverse’, or ‘boomerang’ summary judgment in favour of the plaintiff. A reverse summary judgment is generally granted as a result of a cross-motion by the plaintiff in response to a defendant’s motion for summary judgment, however, this is not always necessary, as demonstrated in a decision of the Ontario Court of Appeal.

The Requirements for Successfully Applying for a Summary Judgment

The test for a summary judgment is set out in Rule 20 of the Ontario Rules of Civil Procedure. To successfully apply for summary judgment, the defendant must be able to satisfy the court that there is no genuine issue requiring a trial. The use of summary judgment motions became more common after the 2014 Supreme Court decision Hryniak v. Mauldin, which specifically stated that the use of summary judgment motions should be better encouraged as a means to eliminate lengthy and expensive trials when possible. It did so by ruling that courts had been too cautious in the past, holding that a judge could not obtain a full appreciation of the evidence without a trial. In the decision, Justice Karakatsanis stated:

[A] trial is not required if a summary judgment motion can achieve a fair and just adjudication if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

What is a ‘Boomerang’ or ‘Reverse’ Summary Judgment?

A boomerang summary judgment occurs when a judge grants summary judgment against the party that brings a motion for summary judgment. This can, and often does, occur at the request of the opposing party, via a cross-motion in response to the original summary judgment motion. In cases where the responding party submits a cross-motion for summary judgment, the moving party has an opportunity to respond to the cross-motion and address the points raised. However, the responding party doesn’t need to file a cross-motion for a court to order a reverse summary judgment.

In cases where the responding party has not filed a cross-motion, a court may still consider a reverse summary judgment order, so long as the court provides notice of the ‘litigation risk’ to the moving party to allow them to address the possibility before the court makes its decision. Courts can ensure the moving party is aware of this risk in several ways, including:

  1. The court’s motion scheduling request form can explicitly inquire whether the responding party intends to seek a reverse summary judgment;
  2. The motion judge can make this inquiry at the start of the motion hearing; or
  3. A judge who determines they may make a reverse summary judgment at some point during the motion hearing or before preparing reasons can inform the parties of the possibility of a finding for a reverse summary judgment so that the parties can respond.

Municipality Brings a Motion for Summary Judgement to have a Case Dismissed

In a recent Court of Appeal decision, the moving party, the City of Toronto, had requested summary judgment in a personal injury case, as being statute-barred due to the expiration of the limitation period. Under the City of Toronto Act, a person who wishes to bring a claim against the City for injuries sustained due to lack of maintenance or repair to city property is required to provide written notice within 10 days of the injury. In the case at hand, the plaintiff did not provide notice until almost 90 days after her injury. The city brought a motion for summary judgment to have the case dismissed.

The motion judge not only dismissed the City’s motion, but also made an order granting summary judgment to the plaintiff, dismissing the City’s defence of statutory notice, and stating that the action was not statute-barred under the City of Toronto Act. The plaintiff had not filed a cross-motion in response to the City’s motion, and the City appealed the judgment, saying the court had not provided the required notice of the litigation risk before issuing its decision.

Municipality Objects to Reverse Summary Judgment, Citing Lack of Notice

While the motion judge decision was under reserve, she had sent an email to counsel for both parties informing them of four precedent decisions she normally takes under consideration when deciding on a motion for summary judgment. One of those decisions was Meridian Credit Union Limited v. Baig, which contained a passage highlighted by the judge, which addressed the concept of a reverse summary judgment in the absence of a cross-motion by the responding party. In her email, she highlighted passages in each of the decisions she had listed and invited counsel to respond before she rendered her decision. Counsel for both parties advised that they did not wish to make further submissions.

The Court of Appeal indicated that this was sufficient notice to both parties that the judge was considering the use of a reverse summary judgment. As both parties were represented by experienced counsel, they should have known that this was the purpose of her highlighting this passage in her email. As a result, the Court of Appeal found that the moving party could not argue a lack of fairness, and allowed the reverse summary judgment to stand.

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