I”ve just come from a motion before Master Calum MacLeod, where he provided to me and to opposing counsel a copy of his reasons in 90 George St. v. Reliance Construction, 2012 ONSC 1171 (CanLII). Upon returning to my office however, I found that they are now on CanLII, accessible through the link above.
This is an important decision, especially for those of us who bring most of our motions for summary judgment before masters. In it, Master MacLeod discusses the scope of powers that masters can exercise on such motions in light of the Court of Appeal’s decision in the Combined Air cases, which interpreted the amendments to Rule 20.
The facts of 90 George St. aren’t of much significance beyond this case, but Master MacLeod’s general observations are. I don’t think I can do much better than to quote the eleven principles distilled by the Master from the authorities:
a. The court hearing a summary judgment motion must first determine if there is a genuine issue that could be successful at trial.
b. There is no genuine issue if the law clearly shows that one of the parties cannot succeed. For example if the Supreme Court of Canada has determined that the cause of action does not exist or if a release, contract or statute allows of only one interpretation.
c. There is no genuine question of fact if the party relying on a key fact that is essential to success at trial cannot prove it. In determining that issue, the court may draw a negative inference under Rule 20.02 (1) if it is appropriate to do so. The court may reject evidence that could not persuade a trial judge such as a bald self serving affidavit, an affidavit that is illogical or internally inconsistent, or an affidavit that is demonstrably incorrect because, for example it purports to rely on wording in a document or contract which is misquoted or nonexistent.
d. In assessing the sufficiency of the evidence, the court must consider whether or not it is just to draw a negative inference and the extent to which it is reasonable to require a party to put its best foot forward at this particular point in time, whether the motion is premature, whether the responding party has been denied access to critical evidence.
e. In an appropriate case if a summary judgment motion would impose an unreasonable and disproportionate procedural burden in advance of discovery, the motion should be stayed.
f. Another factor to be considered in assessing whether the responding party has met its responsibility to put its best foot forward will be the complexity of the evidence. The genuine appreciation test should inform this analysis in my view.
g. A plaintiff moving for summary judgment must show firstly that the plaintiff can prove all elements of the case and secondly that there is no merit to the defence. A defendant moving for summary judgment could do so either on the basis that the plaintiff cannot prove its case or that there is an absolute defence or both. In addition summary judgment may be available on evidentiary grounds or on legal grounds or a combination of the two.
h. If summary judgment would have been granted under the previous rule then it is self evident that it also meets the test under the amended rule. If the evidence or the law demonstrates there is no genuine issue to be tried then summary judgment should be granted.
i. In the case of a genuine issue of law, the master may refer the matter to a judge to decide the question of law if the master is of the view that the only genuine issue is a question of law that could be determined without a trial. (Rule 20.04 (4)) Even if the sole genuine issue is a question of law, it is open to the master to dismiss the motion for summary judgment if it appears the question of law is such that it would require a trial for resolution. In making that decision, the court should now apply the full appreciation test.
j. If there is a genuine question of fact or of mixed fact and law then the master must apply the full appreciation test and may grant summary judgment if the question can be determined without a trial. This will seldom be the case for the master because the powers added to the rule in Rule 20.04 (2.1) and 20.04 (2.2) are not accessible to masters. Thus there will be a class of cases in which notwithstanding that there is a genuine issue that could be tried, a judge can decide the merits without a trial whereas a master cannot.
k. If summary judgment is refused or granted only in part then the master may have recourse to the powers of the court set out in Rule 20.05 but must heed the admonishment of the Court of Appeal in Combined Air that Rule 20.05 cannot be used to grant the very summary judgment that the court has just refused. Rule 20.05 may be used to salvage the resources that went into the summary judgment motion but it is not to be used to effectively order a trial that resembles the motion that was dismissed. [footnotes omitted]
One question that I have is, what happens if the master hearing the motion for summary judgment determines that there is an issue of fact or mixed fact and law that he or she cannot resolve because of not having the new powers conferred by the amendments to Rule 20? Say, for example, an adjudication depends on an evaluation of the credibility of a deponent. Making such an evaluation is something that judges, but not masters, can now do on motions for summary judgment, pursuant to Rule 20.04(2.1) 1. In such a situation, would a motion returnable before a master simply be dismissed or would it be adjourned to be heard by a judge? If the former is the case, bringing motions for summary judgment before masters becomes a somewhat higher-risk proposition.