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Law times • OctOber 3, 2011 Litigation Support Our cost effective service scans and indexes your documents into a quickly searchable database. Call us today, we can help! TF: 1.888.781.9083 www.docudavit.com Focus On titled-10 1 11-08-31 2:53 P LITIGATION Both sides can win under new Rules Judges able to decide how cases proceed following summary judgment ruling BY JULIUS MELNITZER For Law Times F aced with public outcry over the delay and costs inherent in the system, commercial clients' demands for more value from their lawyers, and a concern that too many dubious or ill- motivated cases are clogging the dockets for too long, a new para- digm for summary judgment has evolved in a growing number of Canadian jurisdictions, including Ontario, British Columbia, Al- berta, Quebec, and Nova Scotia. As it turns out, the change in paradigm doesn't appear so much in any departure from the genuine issue test but in giving counsel and judges expanded leeway to delve into evidentiary issues, including credibility, in determining wheth- er a party has met the standard for summary judgment. In some cases, judges can order mini-trials if they conclude that oral evidence may dispose of an issue. What makes all of this particu- larly useful is the notion of par- tial summary judgment common to virtually all jurisdictions. In other words, judges can award or dismiss judgment on only some of the claims made or against only one or more of the parties. As well, most Canadian juris- dictions empower or require judges to make directions as to what, if anything, remains of a case following disposition of a summary judgment motion. "Even if you lose, you win," says Crawford Smith of Torys LLP. He points to the directions given in Har- ris v. Leikin Group by Ontario Superior Court Justice David Brown. "Only one of 10 defendants successfully had the case against them dismissed, but every- body agreed that the result of the mo- tion and the directions that followed from the arguments meant we were now looking at a one-week trial instead of a four- to six-week trial." Alan D'Silva of Stikeman Elliott LLP, who represented some of the defendants who didn't succeed on their summary judgment motion in Harris, lauds the process. "In the past, you either won or you lost and there were huge cost consequences," he says. "The new rules definitely made a difference in this case, which is a very good example of how that induces lawyers to focus on it a little more," says Geoff Adair of Toronto's Adair Morse LLP. "Now- adays counsel are more inclined to bring motions in cases where pre- viously the perception was that if there was any evidence at all on the other side, you couldn't win. It's more a matter of confidence than sea change." But the confidence, in Adair's 'The new summary judgment rules have the potential to affect every single civil case before our courts,' says Ira Nishisato. they are supposed to work." Creative counsel, then, will see a myr- iad of opportunities in expanded sum- mary judgment procedures, among them the potential for strategic and tactical ad- vantages, narrowing the issues, speeding up the process, and reducing costs. The most discernible shift in the landscape belongs to Ontario, which introduced new Rules of Civil Proce- dure in January 2010. The amendments reworded the test for summary judg- ment from "no genuine issue for trial" to "no genuine issue requiring a trial." They also gave court the authority to weigh evidence, evaluate credibility, draw inferences, and order a mini-trial. To be sure, the ultimate impact of the Rules awaits the decision of the On- tario Court of Appeal in four summary judgment cases currently on reserve. The amounts in dispute range from the thousands to the millions, and the indi- vidual cases involve pleadings of fraud, wrongful dismissal, real estate rights, and construction negligence. "The basic issue in the appeals was when it is appropriate for a judge to make findings of fact on a motion for summary judgment and when it is not," says Jean-Marc Leclerc of Osler Hoskin & Harcourt LLP. "But I think it's pretty clear from the history of the Osborne report and most lower court decisions that have already considered the issue that the Court of Appeal will likely en- dorse an expansion of a judge's power to decide cases on a motion for summary judgment." If the court decides otherwise, it'll be bucking the trend. In 2010, judges issued 115 summary judgment rulings, up 64 per cent from the 70 cases heard under the old rule in 2009. Between January and July 2011, about 85 such cases came before Ontario's motion courts, a number reflecting an annual pace that will outstrip the 2009 figure by about 150 per cent and the 2010 sta- tistics by almost 50 per cent. "The new summary judgment rules have the potential to affect every single civil case before our courts," says Ira Nishisato of Borden Ladner Gervais LLP. "They have become an important consideration in deciding how to frame and defend claims." Arguably, the upsurge in the sum- mary judgment numbers is as much a psychological matter as a procedural one. "The new rules have sharpened the edges of summary judgment in a way The experts you need. The quality you deserve. Celebrating 10 years as Canada's trusted source for healthcare experts. Medical malpractice Untitled-2 1 | Personal Injury | Cla ss Action www.lawtimesnews.com www.CanLNCExperts.ca 855-278-9273 (toll free) Experts@CanLNCExperts.ca 11-09-28 9:32 AM view, is well-founded. "Judges seem more prepared to take a harder look at a case to see if there is any reasonably credible evidence to support a pleading," he says. "But the test hasn't changed be- cause if there's any such evidence, summary judgment is still inap- propriate." Overall, Adair favours the changes to the Rules. "By defining things in a more forceful, direct way, the rule makers have done what they wanted, which is to make the profession more open to the possibilities of summary judg- ment. But they did not intend to and did not effect a fundamental change in the process." What the new Rules do pro- mote is more opportunities for the ex- ercise of counsel's judgment. "The new Rules are more encouraging where you have a pretty good gut feeling that you can blow away the other side's case," Adair says. "With judges empowered to make a meaningful decision on cred- ibility, counsel should be more inclined to bring the motion, force the oppos- ing party to file an affidavit, and cross- examine vigorously." Apparently such opportunities abound. "At the end of the day, a lot of cases or issues in a case turn on the cred- ibility of a single witness, which makes the new Rules a great vehicle on narrow issues." Nishisato is of similar mind. "We're no longer in a situation where any sem- blance of a credibility contest causes judges to back off and direct a trial," he says. That'll be even more so if the Court of Appeal construes the new Rules lib- erally. "If the court writes a decision that is generally supportive of the phi- losophy behind the Rules, more people will start thinking about packaging a case for summary judgment even if their case is a complicated one." PAGE 9 LT

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