June 6th, 2012
In his recent Endorsement in 1318214 Ontario Limited v. Sobeys Capital Incorporated (2012 ONSC 2784), Justice David Brown provides his views on an emerging trend in the Toronto Region: requests by litigants to bring lengthy motions for summary judgment after discoveries have been completed. Justice Brown is concerned with the prevalence of such motions due to their potential to needlessly consume scarce judicial resources, and drive up the costs of litigation for the parties. The Endorsement provides guidance on factors that should be considered by counsel and the Court in determining whether such motions should be brought, and if brought whether such motions should be permitted to proceed.
In 2010, changes to the Rules of Civil Procedure come into effect that expanded the powers of a judge hearing summary judgment motions. No doubt this change has significantly contributed to the trend identified by Justice Brown.
Justice Brown estimates that a one to two day summary judgment motion can consume approximately two weeks of judicial time, taking into account time preparing for the motion, the motion itself, and time spent considering the evidence and writing reasons for judgment. Such a use of judicial time may not be warranted at a point during the litigation (after discovery) when the lawsuit is nearing readiness for trial. Justice Brown sounds a note of caution that an unsuccessful, or only partially successful, summary judgment motion merely serves to add on another layer of legal cost, without providing any overall saving of judicial time because a trial will proceed in any event.
Where a party seeks to bring a post-discovery motion for summary judgment, Justice Brown notes that the moving party must demonstrate that the benefits of allowing the motion to proceed outweigh the risks that the motion might fail. In order to assist the court in this analysis, the parties should provide detailed information as to what the proposed summary judgment motion will look like, what the proposed trial would look like, and if the motion were granted (or granted in part), what amount of pre-trial preparation and trial time would be saved. With this information in hand, the judge will be able to consider whether it is appropriate for such a motion to proceed.