“Boomerang” summary judgment motions: A new litigation risk

Written by: Elisabeth van Rensburg

“Boomerang” summary judgment motions: A new litigation risk

By Elisabeth van Rensburg, Lawyer, and Damian Di Biase, Articling Student, Beard Winter LLP

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A recent decision from the Ontario Court of Appeal affirmed that a party seeking summary judgment, to fully or partially dismiss the claim/defence of the other party, may actually have summary judgment issued against themselves, even in the absence of a request from the responding party.

In Graham v Toronto (Graham), the court upheld a motion judge’s granting of summary judgment against the City, even though the defendant never requested this relief. This was because the court had notified the City that their request for summary judgment could be turned against them.

The effect of Graham is that when a party is considering a summary judgment motion, they must be aware of the risk of the order being “boomeranged” against them. While the court must provide notice of this risk, such notice can be provided at any point during the process, including after the hearing. Parties should be diligent in inquiring with the respective justice about the possibility of a boomerang motion and should prepare defences accordingly.

Recent case law has broadened the fact-finding powers available to judges on summary judgment motions

Summary judgment motions enable either a plaintiff or a defendant to have a judge rule on all or part of a claim or defence. If a party can show there is no genuine issue requiring a trial, then a judge will likely dismiss the other party’s claim or defence.

The Supreme Court in Hryniak v Mauldin, 2014 SCC 7  expanded the fact-finding powers of judges on summary judgment motions. There will be no genuine issue requiring a trial when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result.

These broadened powers have resulted in cases such as Graham where courts have granted summary judgment in favour of the responding party

In Graham, the plaintiff tripped on a pothole and sued the City of Toronto. The City brought a motion for summary judgment dismissing the action on the basis that Graham failed to provide notice, which contravened the City of Toronto Act.

The motion judge dismissed the motion, holding the plaintiff’s failure to provide the notice did not bar her action as there was a reasonable excuse for the delay. More importantly, the motion judge granted summary judgment against the City and dismissed its defence. This ruling was made in the absence of Graham requesting summary judgment.

The Court of Appeal upheld the trial decision and affirmed that if there is reasonable notice a party seeking summary judgment may have summary judgment issued against them  

The court held that where a responding party has not filed a notice of cross-motion that seeks summary judgment against the moving party, and the motion judge intends to grant judgment against the moving party, the court must give some notice of that litigation risk so that the moving party can address it.

The court may provide notice through the motion scheduling request form at the start of the motion hearing, during the hearing, following the hearing, or during the preparation of reasons. In Graham, the motion judge emailed counsel, provided precedents, and the opportunity for further submissions. This constituted sufficient notice and permitted the trial judge to grant summary judgment against the City.

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