ONCA on summary judgment

A five member panel of the Ontario Court of Appeal has released a decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 on the scope of summary judgment under recently amended Rule 20 of the Ontario Rules of Civil Procedure.

The five member panel heard five separate appeals from summary judgment motions under the new Rule 20, which was amended in 2010. The Court identified three types of cases amenable to summary judgment:

  1. where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment.
  2. cases where the claims or defences are shown to be without merit
  3. cases decided on the merits where the trial process is not required in the “interest of justice”.

This third type of case is newly permitted under the amended Rule 20, according to the Court.

In the Federal Court, amendments were made to the Federal Courts Rules in 2009 that amended Rules 214 to 216 relating to Summary Trial and Summary Judgment. Both the amendments to the Federal Court Rules in 2009 and to the Ontario Rules of Civil Procedure in 2010 were based on, or inspired by Rule 18A of the British Columbia Supreme Court Civil Rules although the Ontario amendments did not add summary trials.

There has been some commentary on the use of summary trial and summary judgment in the Federal Court including by Smart & Biggar, and Gowlings, particularly on the cases of Wenzel Downhole Tools Ltd. v. National-Oilwell Canada Ltd., 2010 FC 966 (summary judgment not granted), Louis Vuitton Malletier S.A. and Burberry Limited et al. v. Singga Enterprises et al., 2011 FC 776 (summary trial granted) and Teva Canada Limited v. Wyeth LLC, 2011 FC 1169 (summary trial granted).