The 2010 amendments to the
summary judgment rule that
were implemented in January
2011 quickly became the subject
of much controversy.
Breaking with previous
authority, the amendments to
Rule 20 expressly authorized a
motions judge to weigh evidence, assess credibility or draw
inferences of fact to determine
whether there is a genuine issue
requiring a trial. By so doing, a
motion judge’s summary judgment powers were greatly
enhanced and expanded.
One judge coined the language
of the new Rule 20.01( 2) a “
statutory reversal of the case law that
had held that a judge cannot
assess credibility, weigh evidence
or find facts on a motion for summary judgment”: Healey v. Lak-eridge Health Corp., [2010] O.J.
No. 417 (S.C. J.).
The amendments specifically
contemplated that the motions
judge could use the powers of a
trial judge to determine whether
a trial was genuinely necessary,
“not because it is to be given
some preferred status in the
administration of justice, but
because the issues to be resolved
cannot be truthfully, fairly, and
justly resolved without the forensic machinery of a trial”.
The purpose behind these
amendments was to make summary disposition of an action more
accessible by reducing the associ-
CELESTE
POLTAK
ated costs and enhancing efficiency of final judicial resolution.
While a laudable goal to be
sure, the interpretation of the
new summary judgment rules
soon became subjected to a vast
range of differing views and conflicting interpretations during its
short inception. When is a trial
necessary? What level of proof
can feasibly demonstrate
whether a trial is unnecessary to
truly and fairly resolve the issues?
To provide guidance to the
Bar and the judiciary, the Court
of Appeal for Ontario convened
a five-judge panel to hear five
appeals from decisions under
the amended rule in Combined
Air Mechanical Services Inc. v.
Flesch, [2011] O.J. No. 5431
(C.A.). The December 2011 decision was meant to “mark a new
departure and fresh approach to
the interpretation and application of the amended Rule 20.”
However, given the purely discretionary test ultimately articulated by the Court of Appeal,
consistency in the outcomes of
summary judgment motions is
sure to be lacking.
In considering the types of
cases that would, in the interests
of justice, require the full “trial
machinery” to be justly deter-
mined, the motions judge is now
to ask: Can the full appreciation
of the evidence and the issues
that are required to make dis-
positive findings be achieved by
summary judgment?
Breaking with previous authority, the amendments
to Rule 20 expressly authorized a motions judge to
weigh evidence, assess credibility or draw
inferences of fact to determine whether there is
a genuine issue requiring a trial.
“
Celeste Poltak, Koskie Minsky LLP
may or may not require a trial.
The new full appreciation test
will not be met where a case
calls for multiple findings of fact
on the basis of conflicting evidence emanating from a multitude of witnesses. However, in
document-heavy cases, with
limited testimonial evidence, a
motions judge “would be able to
achieve the full appreciation of
the evidence and the issues that
[are] required to make disposi-tive findings”.
taken to mean that parties can,
at their discretion, choose to
enhance their documentary evi-
dence by oral testimony. The
Court of Appeal went to great
pains to articulate that if a party
suggests further evidence is
required, that itself “amounts to
an admission that the case is not
appropriate, at first impression,
for summary judgment”. Rather,
it is for the motion judge, and
the motion judge alone, to deter-
mine whether viva voce evidence
is required. The circumstances
in which it would be appropriate
for the motions judge to invoke
Rule 20.04( 2. 2) might be where:
oral evidence can be obtained
from a small number of wit-
nesses and gathered exped-
itiously; the issue to be dealt
with by oral evidence is likely to
have a significant impact on
whether the motion is granted;
and, the issue for viva voce testi-
mony is narrow and discrete.
Celeste Poltak is a partner in the
class actions department at Koskie
Minsky LLP.
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Courts often require an undertaking to compensate
Norwich
Continued From Page 16
be the only source of information
to identify the wrongdoer.”
That is the biggest stumbling
block, she added. “You can’t
already know who the bad guys
are or where the money is.”
The courts will also deter-
mine if the order is in the inter-
ests of justice. “This involves
balancing the interest of the
person wronged against pri-
vacy,” Brost said.
Norwich orders derive their
name from a well-known British case, Norwich Pharmacal
Co. v Customs And Excise,
[1973] UKHL 6, that involved a
pharmaceutical company’s
request to identify a smuggler of
one of its patent-protected
drugs. The U.K. House of Lords
decision stated that, “if through
no fault of his own a person who
gets mixed up in the tortious
acts of others so as to facilitate
their wrong-doing, he may
incur no personal liability but
he comes under a duty to assist
the person who has been
wronged by giving him full
information and disclosing the
identity of the wrongdoers.”
Closer to home and more
recently, the Ontario Superior
Court of Justice denied a Norwich
order for the Community Living
Fort Frances and District, which
was requesting that a local tele-
communications company pro-
vide copies of cell phone records,
including text messages, between
two individuals. The association
was trying to ascertain if there
had been an inappropriate sexual
relationship between an employee
and a client.
lated the charity’s employment
policy and that it was in a position to discipline the individual
if it wanted to.
“While a Norwich order is a
discretionary, flexible and evolving remedy, it is also an intrusive
and extraordinary remedy that
must be exercised with caution,”
Justice John Fregeau said.
“When courts have refused to
grant Norwich relief, it is often
because the applicants have
failed to establish that disclosure
of the information sought is
necessary to identify the wrongdoer,” said Brost.
“The courts,” she added, “may
view regular discovery as the
appropriate means through which
the applicant may obtain informa-
tion required to build its case.”
Norwich orders are relatively
new in Canada, having arrived
on the judicial scene less than a
decade ago. Their use is starting
to increase, Brost said. “They’re
becoming more widely known.”
One reason lawyers and their
clients may hesitate to use them,
she said, is that an undertaking
to compensate will often be
required by the courts. “In some
cases, the costs can actually be
quite significant.”
For instance, it could take a
company’s employees many
hours to retrieve the requested
information, overtime costs
might be incurred to extract the
relevant data or an office might
have to stay open over a week-
end to access the information.
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