Ontario Summary Judgment

The Summary Judgment Framework

Summary judgment allows the court to resolve claims without a full trial where there is no genuine issue requiring a trial on the merits. The procedure is found in Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Either a plaintiff or a defendant may bring a motion for summary judgment — the plaintiff to obtain judgment without trial, the defendant to dismiss the action or part of it.

The Supreme Court of Canada's decision in Hryniak v Mauldin 2014 SCC 7, [2014] 1 SCR 87 fundamentally reoriented Ontario's approach to summary judgment. Justice Karakatsanis described a "culture shift" requiring courts to embrace summary judgment as a genuine alternative to trial, not a preliminary hurdle to overcome.

The Hryniak culture shift responded to the reality that full trials are unaffordable and inaccessible for most civil litigants. The Court held that timely and affordable justice requires summary judgment to be a real option — not just a paper procedure reserved for only the clearest cases.

The No Genuine Issue Requiring a Trial Test

Rule 20.04(2) provides: "The court shall grant summary judgment if (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment."

Under Hryniak, there is no genuine issue requiring a trial where the judge can:

1. Make the necessary findings of fact
2. Apply the law to those facts
3. Determine a just result — without compromising the fairness of the adjudicative process

The emphasis shifted from "is there a triable issue?" to "is a trial actually necessary to do justice?" Summary judgment is now available even where there are factual disputes, provided the judge can resolve them fairly on the motion record.

Prior to Hryniak, Ontario courts applied a restrictive test: summary judgment was unavailable whenever there was "a real chance" that the outcome might differ at trial. That restrictive approach — articulated in Pizza Pizza Ltd v Gillespie (1990) 33 CPC (2d) 310 — was effectively overruled by the 2010 Rule 20 amendments and confirmed as dead by Hryniak.

Enhanced Fact-Finding Powers

Rules 20.04(2.1) and (2.2) grant significant enhanced powers to judges hearing summary judgment motions:

Weighing Evidence and Assessing Credibility

Under Rule 20.04(2.1), a judge may: weigh evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence. This is a dramatic departure from the pre-2010 regime, where summary judgment judges could not weigh conflicting evidence or make credibility findings — any credibility issue automatically created a triable issue requiring trial.

Post-Hryniak, a credibility dispute does not automatically defeat a summary judgment motion. The judge can assess whether the credibility dispute is genuine, material, and incapable of resolution without the benefit of a full trial — or whether it can be resolved on the affidavit and transcript record.

Oral Evidence and Mini-Trials

Rule 20.04(2.2) permits the court, if it considers it appropriate, to hear oral evidence from one or more witnesses and to order that a discovery (oral examination) take place. This "mini-trial" procedure allows the judge to receive viva voce evidence on contested factual issues, enabling credibility assessment that was previously impossible on summary judgment.

The mini-trial power is used sparingly — it adds cost and complexity, and the Court of Appeal has noted that oral evidence is not automatically available just because the parties prefer a full trial. The judge must be satisfied that the mini-trial is a proportionate tool for resolving the specific issue efficiently.

The Best Foot Forward Principle

A party responding to a summary judgment motion must put their best evidence before the court. The responding party cannot say "I have better evidence, but I am saving it for trial." The summary judgment record must include all the evidence the responding party intends to rely on.

This principle was affirmed in Sweda Farms Ltd v Egg Farmers of Ontario 2014 ONSC 1200, upheld by the Court of Appeal. A responding party who fails to put their best foot forward cannot later complain that summary judgment was granted without their evidence being considered.

The practical implication: a defendant who has a credible defence must adduce detailed affidavit evidence — not merely make bald assertions or file boilerplate affidavits stating the matter is complex and requires discovery. A responding party who submits thin evidence risks summary judgment being granted against them even where a genuine defence might exist.

Partial Summary Judgment

Rule 20.04(3) permits the court to grant summary judgment on part of a claim or counterclaim. Partial summary judgment can reduce the issues requiring trial, save costs, and narrow the dispute. However, the Court of Appeal has cautioned that partial summary judgment should only be granted where it genuinely simplifies the remaining litigation.

In Butera v Chown, Cairns LLP 2017 ONCA 783, the Court of Appeal emphasized that partial summary judgment raises concerns about inconsistency: if the judge resolves one issue by partial summary judgment and the trial judge resolves a related issue differently, the result can be incoherent. Courts should be cautious about granting partial summary judgment on issues that are intertwined with the remaining trial issues.

Partial summary judgment works best where the issues are genuinely severable — for example, where a defendant concedes liability but disputes damages, allowing the court to determine liability by summary judgment while leaving damages to trial. Or where one of several causes of action can be cleanly resolved without affecting the others.

Summary Judgment in Specific Contexts

Strategic Considerations

The decision to bring a summary judgment motion requires careful analysis:

For Moving Parties

• Ensure the motion record is complete — the judge cannot grant summary judgment based on incomplete evidence
• Address all elements of the claim or defence; a partial response to one element does not defeat the motion
• Consider whether the responding party has evidence that, if adduced, might create a genuine issue
• Brief the proportionality rationale — why is summary judgment more efficient than trial?
• Consider timing: summary judgment before discovery may be premature; after discovery the record is usually sufficient

For Responding Parties

• Put your best foot forward — submit all evidence you intend to rely on
• Identify genuine (not manufactured) disputes of material fact
• If credibility is genuinely in issue, explain why live testimony is necessary
• Cross-examine the moving party's deponents if their credibility is material
• Consider whether a Rule 20.04(2.2) mini-trial request would serve your client's interests

Costs Exposure

Summary judgment motions carry significant costs exposure. An unsuccessful summary judgment motion will result in a substantial costs award against the moving party. Courts have awarded $50,000–200,000+ in costs against parties who brought summary judgment motions that were clearly inappropriate for that procedure. This makes careful pre-motion assessment critical.

Frequently Asked Questions