Summary Judgment Motions – The Recent ONCA decision

Written on December 13, 2011.

The Court of Appeal for Ontario released its decision recently in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764. This decision was in fact an appeal decision in 5 different cases, heard together, where Summary Judgment under the “new” amended Rule 20 had been granted. The Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, has set out a new test which now applies to all SJ motions, called the “full appreciation of the evidence test”.  A motions Judge hearing a motion for SJ must now ask themselves: “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?” However, the duty of counsel was always to ensure that the Judge was capable of achieving a “full appreciation” of the case, by leading trump and putting their best foot forward. If you didn’t you lost. That duty remains and presumably, prior to this new ruling by the CA, a Judge who heard a motion for SJ and granted it was guided by principles of justice and fairness, fully satisfied as to the sufficiency of the evidence presented meeting the applicable test for SJ, and felt that justice was properly served in granting the relief given. I fear that the pendulum has begin to swing backwards, and what seemed to be promising reform to Rule 20 following the Osbourne Report, has now been blunted somewhat by the CA’s decision in Combined Air Mechanical Services Inc. v. Flesch.