Trials are expensive and slow. They require witnesses, preparation, booked court time and months or years of waiting. Sometimes, once the documents are on the table, a lawsuit comes down to a question that does not need all of that. A loan agreement is signed and the borrower has no real explanation for not paying. A claim has plainly been brought too late. A contract clause answers the dispute outright. In these situations, one party may ask a judge to decide the case on paper: a motion for summary judgment.
It is a serious tool. A successful motion can bring the case, or a large part of it, to an end. A failed one can cost considerable time and money and may give the other side a look at your evidence. Knowing when these motions are realistic can save you from an expensive mistake, whichever side of the courtroom you are on.
Please treat this as general information about Superior Court procedure in Ontario, and not as legal advice on your case. Whether a motion makes sense turns on the evidence and the stage of your file.
Which Court, and When
Summary judgment is governed by Rule 20 of the Rules of Civil Procedure and is used in the Superior Court of Justice. Small Claims Court has its own procedures and does not use Rule 20, so these motions are generally not part of a Small Claims case. In Brampton, Superior Court civil matters are heard at 7755 Hurontario Street, and motions are scheduled through the court’s civil trial office and its process for longer motions.
Either side can bring the motion:
- A plaintiff can move after the defendant has delivered a statement of defence or served a notice of motion. In a case of special urgency, the plaintiff may seek permission to serve the motion together with the statement of claim, but this is unusual.
- A defendant can move after delivering a statement of defence, asking the court to dismiss all or part of the claim.
Often the motion comes after documents have been exchanged and parties have been examined, since the evidence then tends to be more developed. Sometimes, though, it comes earlier, if the issue is narrow and the key records are already available.
The Test: Is There a Genuine Issue Requiring a Trial?
Under Rule 20.04(2), the court shall grant summary judgment if it is satisfied there is no genuine issue requiring a trial with respect to a claim or defence. It can also grant it if the parties agree to have all or part of the claim decided this way and the court is satisfied that it is appropriate.
The leading decision is Hryniak v. Mauldin, 2014 SCC 7, from the Supreme Court of Canada. The Court said there will be no genuine issue requiring a trial when the judge can reach a fair and just determination on the merits on the motion. That will be the case when the process lets the judge make the necessary findings of fact, lets the judge apply the law to those facts, and is a proportionate, more expeditious and less expensive way to reach a just result. The Court called for a culture shift in the way civil cases are handled, recognizing that a conventional trial is not always the only route to fairness.
So the question is not “could anybody possibly disagree?” It is closer to “can a judge fairly decide this from the material, and is doing so sensible for a case of this size?”
What a Motion Judge Can Do
Rule 20.04(2.1) gives a judge a set of enhanced powers: weighing the evidence, evaluating the credibility of someone who has sworn an affidavit, and drawing reasonable inferences from the evidence. These may be used unless it is in the interest of justice to leave them to a trial. Under Rule 20.04(2.2), a judge can also order oral evidence from one or more parties, which is sometimes called a mini-trial.
Hryniak described a sequence. The judge should first decide, on the evidence filed and without using these powers, whether there is a genuine issue. If there appears to be one, the judge can then consider whether the powers would avoid the need for a trial.
Two more provisions may matter. If the only real issue is the amount owed, the court can order a trial on that issue or grant judgment with a reference to decide the amount. If the only real issue is a question of law, a judge can decide it and grant judgment.
“Best Foot Forward”: What Each Side Has to File
The motion is decided on the record, so the quality of that record is everything. The courts often say that each party must put its best foot forward. You cannot hold back your strongest evidence for a trial that may never happen.
The moving party usually serves a notice of motion and one or more affidavits, with the important documents attached as exhibits. An affidavit is a sworn written statement, and it can sometimes be based on information and belief when the source is identified. However, the court may draw an adverse inference if you do not supply evidence from someone with personal knowledge of disputed facts. So if your bookkeeper is the person who actually knows what was paid, you should probably get an affidavit from the bookkeeper.
The responding party is under a specific obligation. Rule 20.02(2) says a responding party may not rest solely on allegations or denials in their pleadings. They must set out specific facts, in affidavits or other evidence, showing there is a genuine issue requiring a trial. “We’ll prove it at trial” will not do. If you are facing one of these motions, this is usually the moment to gather everything: documents, witness affidavits and, if needed, an expert’s report.
Cross-examinations on affidavits are common. A witness’s sworn statements can be tested under oath, and transcripts may then be used at the hearing. Inconsistencies matter, so nobody should sign an affidavit without reading every line.
Factums are written legal arguments. Each party must serve one on every other party. The moving party’s factum must be served and filed at least seven days before the hearing, and the responding party’s at least four days before. Your lawyer will confirm current scheduling practice in Brampton since a long motion may have other timelines set in a court direction.
Cases That Tend to Suit Summary Judgment
Whether a motion is appropriate depends on the details, but the following hypothetical examples often come up as candidates:
- A debt with clear paper. A Brampton business has signed a promissory note and defaulted. The defence is a bare statement that the loan “wasn’t really a loan”, with nothing to support it.
- A limitation defence. A defendant shows that the claim was started well after the plaintiff clearly knew of the loss. If the dates are not really in dispute, the issue may be decided without a trial.
- Interpreting a contract. The parties agree on what the contract says and what happened, and they differ only on what a clause means.
- A mortgage or guarantee claim. A lender with clear documents and calculation of the debt may seek judgment against a borrower or guarantor.
- A claim that is missing a key ingredient. A defendant shows that the plaintiff cannot prove an essential element, such as damages or causation, and the plaintiff responds with no real evidence of it.
Our page on civil motions and applications gives more background on these court steps.
Cases Where the Motion May Fail
The motion is weaker when the outcome depends on who the judge believes, particularly where there are many witnesses and few documents. Consider a hypothetical dispute about a verbal agreement between former business partners who tell two wildly different stories. A judge might have the power to assess credibility on affidavits, but may conclude that a fair result requires seeing live testimony.
A few other warning signs:
- Complex facts or a lot of experts. The paper record may be too large, and the “proportionate” argument may disappear.
- Partial summary judgment. Deciding one piece of a case while the rest proceeds to trial can create a risk of inconsistent findings, as well as duplication and delay. Ontario appeal courts have cautioned about this. It can be appropriate where the issue can be readily separated, but it calls for careful thought.
- Multiple defendants. If one defendant gets out and the same facts continue against the others, the same concern about inconsistency can arise.
- A record that is still developing. A motion brought before key documents have been produced may be premature.
- Facts that keep shifting. If the evidence is changing, a judge may want it to be fully tested.
Costs and the Risk of Losing
Costs usually follow the result in the Superior Court, so the losing party on a motion generally pays part of the winner’s legal costs. Beyond that, Rule 20.06 lets a court order costs on a substantial indemnity basis (a higher scale) if a party acted unreasonably in making or responding to the motion, or acted in bad faith to cause delay.
There are hidden costs too. Preparing a good motion may be close to preparing a mini-trial, and a loss leaves you still needing a trial, with a smaller budget. On the positive side, if the court refuses summary judgment, it can specify which facts are not in dispute, define the issues for trial, and impose directions, so the effort may not be entirely wasted. The motion judge may even remain involved with the case going forward.
A motion judge’s final decision can be appealed, generally to the Court of Appeal for Ontario, within a short deadline. The appeal court gives considerable deference to a motion judge’s findings of fact, which means that the first hearing really counts. Your lawyer can tell you which route and time limit apply.
Questions to Ask Before You File, or Respond
Before deciding, ask your lawyer some direct questions:
- What must be proven, and which pieces of evidence prove it?
- Who has personal knowledge, and will they sign an affidavit?
- Which facts does the other side really dispute, and how would they try to dispute them?
- Would the motion end the whole case, or leave a trial anyway?
- What is the estimated cost, compared with the amount at stake?
- If we lose, what costs could we face, and what would we have revealed?
- Is the court currently able to hear the motion sooner than it would hear a trial?
- Are the rules affecting this step changing? Ontario’s civil procedure has been under review, so confirm the rules in force at the time you act.
If you are responding, focus on one question above all: what evidence would convince a judge that this case truly cannot be decided fairly on paper? If you cannot answer that clearly, you may need to rethink your position or explore settlement.
A Practical Way to Think About It
A summary judgment motion is a business decision as much as a legal one. It is often worth considering when the facts are clear and the documents are strong, and when a trial would be disproportionate. It can be a poor choice if the case hinges on credibility, or if the record is incomplete. And being served with one is not the end of your case, but it does mean that you have to bring your evidence forward now.
If a motion is being considered in your Peel lawsuit, the firm’s civil litigation group can review your pleadings and documents. Reach out through the contact page when you are ready. Timing can make a difference to what can be done.