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Page 16 December 3, 2018 • Law Times www.lawtimesnews.com success. Ross says he hasn't seen much in the way of gains in the process and describes it as "a very unhappy experience." In addition, he says, in none of those cases did the judge re- main seized with the case and none of the process was salvage- able for trial, so it was seen as a costly and fruitless exercise. Ross further points to the 2016 Court of Appeal decision in the medical malpractice case Sanzone v. Schechter, which determined that a defendant going for a motion would need expert evidence to show the plaintiff 's case doesn't demon- strate the doctor breached the standard of care. While he has since had some success, Ross says it's sporadic and unpredictable and often a hard sell to clients who have seen the failures. In addition, his firm has tried, without success, to appeal some of those decisions. Ross says he believes more guidance is necessary either through more rule changes or an appellate decision. What he says would be re- ally helpful would be for the Su- preme Court to weigh in once again. He is buoyed, however, by Gluckstein's success in Duggan. "That shows you the good can come of it in the right case, in the right circumstances and the judge being practically minded about it, doing what I thought was the right thing," says Ross. Gluckstein attributes part of the success to having the same case management judge through the summary judgment motion who was familiar with the case and its particular facts. That, he says, speeds up justice for the complex litigation matters that can take close to a decade to get through the system and it made a difference in this multi-mil- lion-dollar case. "We were essentially asking him to decide a large part of the damage evidence" after having dealt with the liability issue, says Gluckstein. Although, he says, the judge did emphasize that the motion should be used only in situations where justice will be served and eliminate court time. Fullerton sees the use of judg- es in this gatekeeper function as an ongoing evolution. While the focus currently is on summary judgment motions, she says, in Hryniak, the Su- preme Court also discussed the use of other options. The rules allow for hybrid tri- als and a summary trial is avail- able in a simplified procedure action, she says. There's also a model of bi- furcating liability and damages available. "If we're aware of all of those things at the outset, you develop your case differently," says Ful- lerton. "That's how maybe we can actually achieve cost-effec- tive, proportional access to jus- tice." Certainly, summary judge- ments have gained traction in the last five years. David El- maleh, an insurance defence lawyer and partner with Mc- Cague Borlack LLP in Toronto, notes that Hryniak has been cited in more than 2,700 cases. "The key strategic question is how can a summary judg- ment motion be used as a tool to achieve an efficient judicial determination of a dispute?" he says. "My clients are always inter- ested in knowing how the litiga- tion landscape on a particular file will change if a motion is un- successful. Will the momentum shift to the other party? Will it embolden them to take tougher settlement positions?" Like Ross, Elmaleh sees unique challenges for a treating practitioner or hospital moving for summary judgment. A moving party is required to put its "best evidentiary foot forward" to discharge their bur- den and only then will the onus shift to a plaintiff to prove that the claim has a real chance of success and that there is a gen- uine issue requiring a trial, he says. Another consideration from a defence perspective is that in order to succeed, often, the tar- get defendant would need to put in affidavit evidence and likely expert evidence as well on the issue in dispute, says Ross. His concern is that this affords the opposing party with an oppor- tunity to cross-examine the affi- ant, he adds. If the motion is dismissed, he says, it may be used at trial to im- peach certain evidence or cred- ibility. "Overall, summary judgment motions should be seriously considered but pursued when there is a reasonable chance of success. It can spawn settlement negotiations, allow parties to clarify and pronounce their po- sitions and permit the judiciary to weigh in on disputes that could otherwise go on for years and years at a heavy cost if not determined by way of summary judgment," he says. LT Continued from page 15 Motions have gained traction in the last five years MEDICAL MALPRACTICE LAW © 2018 Thomson Reuters Canada Limited 00254GM-93894-NP Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # L7798-8667-65203 $110 Softcover October 2018 approx. 180 pages 978-0-7798-8667-8 Multiple copy discounts available Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. For almost 30 years, litigators have relied on Witness Preparation: A Practical Guide to learn the principles and get proven, real-world strategies. Concise and highly readable, the new fourth edition of this classic guides you through every step of choosing, interviewing, and preparing witnesses. You'll find proven tips for witness preparation, along with insight into significant developments in electronic discovery, the law of child witnesses and witnesses under a disability, and the law of conflicts of interest and privilege. Find extensive discussion, relevant legislative and jurisprudential updates, on: • Interviewing prospective witnesses • The decision to call a witness • Preparation for examination-in-chief • Preparation for cross-examination • Evidence and trial procedure • Preparation for examination for discovery • Preparing experts • Preparing child witnesses • Preparing adults with mental disabilities • Witness preparation and professional responsibility New Edition Witness Preparation: A Practical Guide, Fourth Edition Bryan Finlay, Q.C., The Honourable Thomas A. Cromwell, C.C., and Nikiforos Iatrou Whitby • Kingston • Perth • Carleton Place • Ottawa 1.866.384.5886 bergeronclifford.com E A S T E R N O N TA R I O ' S I N J U R Y L AW F I R M Untitled-3 1 2018-11-28 8:50 AM Stephen Ross says more guidance is neces- sary on when summary judgments can be used, either through more rule changes or an appellate decision. Overall, summary judgment motions should be seriously considered but pursued when there is a reasonable chance of success. David Elmaleh

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