Canadian Underwriter

Summary judgement motion not considered a “mini-trial”: Ontario Superior Court

June 21, 2010   by Canadian Underwriter

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A motion for summary judgement to dismiss a liability case does not constitute a “mini-trial” and split a case so that it becomes a trial within a trial, the Ontario Superior Court ruled under the new Rules for Civil Procedure.
In Wilson v Kennedy, a defendant, Garven Kennedy, filed a motion for summary judgement to dismiss an auto liability action against him on the argument that there is no genuine issue of liability requiring a trial.
Counsel for Theresa Wilson, the plaintiff (and respondent to the motion), objected to the hearing of the motion for summary judgement. Wilson’s lawyer argued that to hear such a motion would be to bifurcate a jury case.
To bifurcate a jury case would essentially pose the risk of different tribunals hearing issues in the same case, and deliver conflicting decisions.
Counsel, in making its objection, referred to Sub rule (2.2) of Rule 20.04, which falls under the heading ‘(2.2) Oral Evidence (Mini-Trial).’
But “in the present motion, the taking of oral evidence has not been asked for, nor has it been granted,” wrote Ontario Superior Court Justice David Crane. “Therefore there is not, in this motion, what has been peripherally described in sub rule (2.2) as a (Mini-Trial).”
As for the larger question, whether or not a summary judgement motion to dismiss an action in cases in which jury notices have been delivered could be viewed as bifurcation of the case, Crane wrote: “In my view, summary judgement motions, if successful, result in a dismissal of the whole of the action.
“This cannot be a bifurcation of issues. Alternatively, if the motion is dismissed, the case goes to trial. Again, there is no bifurcation of the issues.”

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