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  The Best Defence is a Good Offence – Changes to the Rules of Litigation – Part 1

Just like your favourite sports league, litigation is governed by a complex and thick set of rules. The purpose of these rules is to govern the behaviour of the combatants and their counsel and ensure, to the greatest extent possible, that the litigation proceeds in a fair and ordered fashion with minimal surprises at trial.

While these rules provided some certainty as to how litigation was to be conducted by each participant, it was found that many of the procedures imposed on the parties had contributed to the significant increase in cost of litigation in Ontario. As a result, significant changes have been made to the existing rules with the aim of streamlining several stages of the litigation process and, hopefully, providing parties with a more cost-effective access to justice.

The following provides a brief overview of the changes to the summary judgment rules which came into force as of January 1, 2010.

Lowering the Hurdle for Success

At any stage of the litigation, a party may move before a Judge and ask that Judgment be granted on a summary basis without the requirement of a trial. This is typically attempted when one of the parties believes that his or her case is so clear that a trial where witnesses are called to give oral evidence is unnecessary. For example, a defendant can present affidavit and documentary evidence and ask the Judge to conclude that the claim is frivolous and that there is no evidence to support the cause of action.

Under the previous regime, the test for summary judgment was onerous and, therefore, such motions were difficult to win. Effectively, the party had to prove that its position was so clear that there was no need for a trial to resolve any outstanding issues. Due to the significant bar that had to be overcome, motions for summary judgment were rarely brought due to the low chances of success. Hence, a procedure which was designed to weed out frivolous positions did not function as intended.

The changes to the Rules now indicate that summary judgment may be granted unless the Judge decides that a trial is required. The change to the wording of the rule is small, but its potential impact could be significant. In particular, the Judge may now weigh evidence, evaluate the credibility of the evidence without requiring oral evidence and draw reasonable inferences from the evidence submitted on the motion. Accordingly, there is much more latitude for the Judge to make decisions based on the documentary evidence alone.

However, if the Judge is of the view that the affidavit evidence submitted in support of the motion is insufficient, he or she may order that oral evidence be given at the hearing of the motion. While this was allowed under the old rules, it was very rarely exercised by counsel. Under the new rules, the Judge can decide whether a request for oral evidence would assist in resolving an outstanding issue that may be standing in the way of a summary judgment. Thus, the new rules appear to allow a Judge greater discretion to make a decision on the core issues at dispute if he or she believes that this can be done without requiring a full-blown trial.

The importance of this for litigants is that parties who are confident in the merit of their position may bring a motion for a determination of their position at an early stage of the litigation. This may prevent a party with a weak case from dragging the litigation on endlessly through the use of procedural tactics.

Financial Disincentive Also Removed

Another significant hurdle to the use of the summary judgment rule was that if a party was not successful, it was required to pay the full legal costs of the successful party. Thus, parties were reluctant to risk such a motion since they would effectively be required to pay two sets of legal fees.

Under the new rules, the Court can still award full costs to the successful party, but only if the losing party is found to have acted unreasonably in resisting the motion or acted in bad faith for the purposes of delay. Otherwise, the losing party will only be responsible for a portion (approximately one-third to one-half) of the actual legal fees incurred by the successful party. This change will remove a significant financial hurdle to the use of the summary judgment procedure.

Court Can Provide Directions

In the past, if a party was unsuccessful on a motion for summary judgment, the parties typically went back to their respective corners and continued to battle through the remaining litigation steps until trial. The changes to the rules now encourage the presiding Judge, in cases where summary judgment is unsuccessful, to provide the parties with some direction for the purposes of simplifying or streamlining the remaining litigation steps.

The goal of these amendments is to reduce the complexity and cost of the remaining stages of the dispute. For example, the Court may impose a timetable for the remaining steps so that the action proceeds in an expeditious fashion; make an Order that certain material facts are not in dispute so that they do not have to be argued and determined at trial; or order that evidence used on the motion may be used at trial.

The importance of these new provisions is that even an unsuccessful motion for summary judgment will not have been a complete waste of time and money as the parties can use the opportunity to request other orders from the Court which can be used to significantly shorten and simplify the ultimate trial of the dispute.

Clearly, the intent of the changes to the rules of summary judgment is to encourage greater use of this procedural tool so that undeserving litigants cannot use the complex rules of the litigation game to indefinitely delay a final decision. As professional sports leagues have tweaked their rules to encourage a more open and entertaining product, we believe that the changes to the summary judgment rule are similarly designed to encourage more offence in the litigation arena. It remains to be seen how the Courts will interpret these modifications to the rules, but we are encouraged with the breadth of the changes and the new discretionary powers which appear to have been provided to the Judges hearing such motions. In theory, the new rules should provide parties with strong cases the incentive required to go on the offence and seek an early and more cost-effective decision from the Court.

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