Address To CBAO Civil Litigation/Insurance Sections End-of-Term Dinner

Subject: Summary Judgment Motions and Appeals

It is a great pleasure to be here on the occasion of your End of Term Dinner. When I was asked by Neil Wheeler to give this address, my mind turned naturally to provocative subjects such as judicial activism and the election of judges. However, I was reminded sharply that this is not a frivolous organization and that a discussion of summary judgment motions and appeals would be more to the taste of the membership.

This is not a sparkling topic, but I can understand why it is a nuts and bolts issue to the profession. The appropriate use of Rule 20 can do much to advance the interests of your clients by bringing about an expeditious end to litigation at comparatively little cost. At the same time, it finds much favour with the judiciary where its use shortens the court calendar. The major objection to the Rule is that when it is used inappropriately, it has just the opposite effect. It creates its own delays and wasted legal costs. I hope to be of some assistance to you tonight by pointing out the principal pitfalls to the use of the Rule as seen from the Bench.

I think that the principal confusion arises from a lack of understanding of the limitations of Rule 20. It is too often used in conjunction with Rule 21(1)(a) and (b) dealing with questions of law raised in a pleading and with motions to strike out a pleading where it discloses no reasonable cause of action or defence. As I will develop, this confusion spills over into the appellate process where the unsuccessful party is unsure whether to appeal with leave to the Divisional Court or as of right to the Court of Appeal. Additionally, I have seen instances where the parties have persuaded a motions judge to take on what is essentially a trial on an agreed statement of facts and treat it as a combination of motions under Rule 20 and 21(a). This is a recipe for disaster because at the end of the process, it is impossible to tell into what category the various findings made by the trial judge fall: a pure question of law under Rule 20, a question of law under Rule 21(a) or a finding that there was no genuine issue for trial on the facts. The distinctions may appear academic at the hearing of first instance, but the problems become very real when the unsuccessful party attempts to determine where to go to appeal.

I hope that a short summary of the rule changes between 1984 and the present may help to explain my points.1 Rules 33, 42 and 58 provided for summary judgment until the advent of Rule 20 in 1985. Morden A.C.J.O. examined the change in the rules at p. 549 in Irving Ungerman Ltd. v. Galanis.2 He noted that under the former rules only a plaintiff could move for summary judgment. Now either party may so move. Additionally, under the former rules, the defendant had to support his or her position by affidavit, while the new rule contemplates both parties delivering "affidavit material or other evidence".3

Under the old rules, summary judgment could only be granted in actions where the writ of summons was specially endorsed. Rule 33 provided that the plaintiff could specially endorse the writ of summons where the plaintiff sought "to recover a debt or liquidated demand in money" in the limited circumstances of "a simple written promise to pay or written acknowledgement of a debt" or "upon a simple acknowledgement of a contract, express or implied for goods sold or delivered". Since rule 20 applies to all actions, the new rules have substantially expanded the potential application of summary judgment. I come now to the evolution of the rule 20 case law.

The leading decision on summary judgment is Irving Ungerman Ltd. v. Galanis, supra. Here this court, for the first but by no means the last time, dealt with the vexatious issue of what is a "genuine issue for trial" as called for in rule 20.04(1). In that case, Sam Galanis had an option to buy property from Linda Haut. To exercise the option, Galanis was required to present Haut with an offer and a cheque for $10,000 before midnight on October 21, 1988. However, three days before the purported exercise of the option, Haut also entered into an agreement to sell the property to Irving Ungerman Ltd. The issue was whether Galanis validly exercised the option by presenting a cheque to Haut before the deadline.

Galanis brought a motion for summary judgment and Irving Ungerman brought a counter-motion for summary judgment. Extensive evidence was filed including affidavits of the parties or their representatives, affidavits of witnesses, transcripts of cross-examinations on these affidavits and the examination for discovery of Galanis. The motions judge reviewed the evidence in detail. Irving contended that there were several genuine issues of fact that required a trial. However, the main issue presented on appeal was whether Galanis presented the $10,000 deposit cheque to Haut. The motions judge concluded that this was one of the "rare and exceptional cases where in the face of controverted evidence as to a material matter there is no genuine issue for trial"4 The motions judge found that Galanis had presented Haut with the cheque and thus properly exercised the option. Summary judgment was granted and Galanis received an order for specific performance.

On appeal, Morden A.C.J.O. examined the history and purpose of the summary judgment rule and concluded that summary judgment should not have been granted in this case. The key phrase in rule 20 is "no genuine issue for trial". Morden A.C.J.O. noted that the expression "genuine issue" was borrowed from Rule 56(c) of the Federal Rules of Civil Procedure in the Unites States, which reads:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The Ontario rule does not contain the requirement that the genuine issue relate "to any material fact" and also omits the requirement that the moving party is "entitled to a judgment as a matter of law". Morden A.C.J.O. stated that these differences are irrelevant. As he said at p. 550: "[i]f a fact is not material to an action, in the sense that the result of the proceeding does not turn on its existence or non-existence, then it cannot relate to a 'genuine issue for trial'." Similar reasoning applies to entitlement to judgment as a matter of law. It is implicit in our rule that judgment will only be given if the moving party is entitled to such judgment as a matter of law.

Morden A.C.J.O. also examined the purpose of the summary judgment rule. Quoting from a relatively early American case, Engl v. Aetna Life Insurance Co.,5 he stated at p. 550 that the purpose is to enable "a party to pierce the allegations of fact in the (other party's) pleadings". Morden A.C.J.O. took this to mean that "in addition to having a right to move for early resolution of a question of law, as a means of shortening a proceeding as provided for in Rules 21 and 22, it is now possible to avoid a trial or shorten the proceeding on satisfying a court that there is no need for a trial because there is no genuine issue of fact requiring one".

Morden A.C.J.O continued his analysis of the purpose by noting that rule 20 provides a means for securing procedural justice. There are times where holding a trial will be both unnecessary and expensive. The successful party will be delayed in obtaining substantive justice and will be put to unnecessary expense. In situations where there is no genuine issue for trial, procedural justice requires not that every litigant get a "day in court", but rather an expeditious conclusion to the proceeding.

It is important to understand the meaning of a "genuine issue". Morden A.C.J.O. considered the meaning of "genuine", and held as follows at p. 551:

It is safe to say that "genuine" means not spurious and, more specifically, that the words "for trial" assist in showing the meaning of the term. If the evidence on a motion for summary judgment satisfies the court that there is no issue of fact which requires a trial for its resolution, the requirements of the rule have been met. It must be clear that a trial is unnecessary. The burden is on the moving party to satisfy the court that the requirements of the rule have been met. Further, it is important to keep in mind that the court's function is not to resolve an issue of fact but to determine whether a genuine issue of fact exists. [Emphasis in original.]

The main issue in Ungerman was credibility. Haut maintained that she did not receive the cheque for $10,000. Galanis stated that the cheque was delivered to her in the evening on October 21. The trial judge resolved this issue of credibility, finding that Haut was an unsatisfactory witness and expressly believing the witnesses who testified that the cheque had been presented to Haut. Morden A.C.J.O. considered the relationship between summary judgment and questions of credibility and held at p. 552: "the proposition that an issue of credibility precludes the granting of summary judgment applies only when what is said to be an issue of credibility is a genuine issue of credibility."

Although there were contradictions in Haut's evidence and circumstantial features that supported Galanis's story, the evidence was not such that the court could be satisfied that there was no genuine issue for trial. Both the timing and sequence of Galanis' cheques and the credibility of the witnesses were factual issues that required a trial to resolve. In the result, this Court allowed the appeal and made an order dismissing the motion for summary judgment.

The Supreme Court of Canada briefly considered motions for summary judgment in Hercules Managements Ltd. v. Ernst & Young.6 Although the case arose in Manitoba, rule 20 in that province also refers to a "genuine issue for trial". LaForest J., writing for the court, endorsed the following procedure set out in Fidkalo v. Levin:

The question to be decided on a rule 20 motion is whether there is a genuine issue for trial. Although a defendant who seeks dismissal of an action has an initial burden of showing that the case is one in which the existence of a genuine issue is a proper question for consideration, it is the plaintiff who must then, according to the rule, establish his claim as being one with a real chance of success.7

Despite a number of reported cases of my court on the subject of rule 20, Ungerman remains the law. All subsequent decisions must be considered as merely explanatory of, or particular applications of, the decision delivered by Morden A.C.J.O. For example, in a 1998 decision, Borins J.A. laid out a detailed procedure for motions court judges to consider motions for summary judgment. Dawson v. Rexcraft Storage and Warehouse Inc.8 involved three separate appeals that were argued together because they raised the same legal issues. Two main issues were raised: (1) the analytical approach to be taken in determining whether there is a genuine issue of fact; and (2) the proper role of a motions judge when undertaking this analysis.

Borins J.A. began by contrasting rule 21.01(1)(b) with 20.01(1) or (3). Rule 21.01(1)(b) allows a party to make a motion to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. When considered from the point of view of the defendant, the purpose of this rule is to determine whether the plaintiff's allegations are substantively adequate to provide the relief claimed. The motions judge does not consider any evidence, but rather assumes that the facts pleaded are true. The issue is whether, given those facts, the plaintiff has established a cause of action. A statement of claim may be vulnerable because the plaintiff seeks relief against actions that are not proscribed by law, or because the plaintiff has failed to plead all of the requisite elements of the cause of action.

In contrast, on a motion for summary judgment the judge will consider the pleadings, affidavits, cross-examination, examinations for discovery, admissions and other evidence to determine whether the factual dispute is genuine. Borins J.A. identified the purpose of summary judgment at p. 265 as "to isolate, and then terminate, claims and defences that are factually unsupported." He described the difference between a motion to strike out a pleading and a motion for summary judgment as follows at p. 266:

Thus, while a rule 21.01(1)(b) motion focuses on the substantive adequacy of a claim, or a defence, it offers no assistance in weeding out cases where a substantively adequate claim, or defence, has been pleaded, but cannot be proved. This is the function of a motion for summary judgment.

Summary judgment will not be used to try the facts, but merely to determine whether there is a genuine issue of material fact. Where there is no dispute about a material fact, but there is an issue of law, the motions judge may decide the question of law under rule 20.04(4). The rule is discretionary, and the motions judge may send the issue of law on to trial rather than deciding it. However, in such a case it would be appropriate for the judge to specify the material facts not in dispute and to define the issue to be tried.

Borins J.A. also explained the procedure used by Wright J. in analyzing the summary judgment motion in Jones v. Clinton and Ferguson.9 Although it was an American case, Borins J.A. held at p. 271 that the following procedure applies equally to a motion by the defendant under Ontario's rule 20. The wording from the judgment of Borins J.A. will be paraphrased to make it coherent for the purposes of this paper:

(i) The judge should first examine each of the plaintiff's claims individually and state the elements of each claim.

(ii) Next the judge should review the case law with respect to each claim for the purpose of determining the range of facts that courts have accepted as establishing the claim.

(iii) The plaintiff has the initial burden. The judge must examine the entire evidentiary record with a view to determining whether it discloses a genuine issue for trial with respect to a fact material to the proof of the claim. (iv) If it appears that there is no genuine issue, the burden falls on defendant to demonstrate that there is evidence which, if accepted by the trier of fact, supports the claim.

(v) The trial judge should examine this evidence, in the context of the evidentiary record and the elements of the plaintiff's claims as defined by the case law, to determine whether the evidence, if accepted by the trier of fact, is capable of proving any, or all, of the claims.

(vi) If there is no evidence capable of establishing the claim, the motion for summary judgment succeeds. Otherwise the motion fails and a trial must be ordered.

The reverse, of course, applies to a motion for summary judgment brought by the plaintiff.

Borins J.A. emphasized that the entire record must be considered by the motions judge. He noted at p. 272 the "importance of the court not considering a particular fact in isolation, but the need for evaluating it in the factual context of the entire record in deciding whether there is a genuine issue for trial." Finally, also at p. 272, Borins J.A. offered the following caution regarding the use of rule 20:

As I have stated, the purpose of Rule 20 is not to deny the parties due process. It is not intended to deprive plaintiffs and defendants of their day in court absent demonstrated compliance with its requirements. Under the Rules of Civil Procedure, the plenary trial remains the mode for the resolution of disputes. Rule 20 does not represent court reform, or the reform of the adversary system, in disguise. Together with rule 21.01(1)(b), its purpose is to weed out cases at the pretrial stage when it can be demonstrated clearly that a trial is unnecessary.

Arising out of his practical experience as a trial judge in dealing with summary judgment motions, Borins J.A took an early interest in summary judgment appeals on his arrival at this court. As an ad hoc appellate judge, he delivered the judgment of this court in Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161. I commented on both of the judgments of Borins J.A. in V. K. Mason Construction Ltd. v. Canadian General Insurance Group Ltd.:10

Ungerman and a number of other summary judgment cases were recently reviewed by this court in Dawson v. Rexcraft Storage and Warehouse Inc., [1998] O.J. 3240 (C.A.). While I do not believe the court changed the law from that set out in Ungerman, the extensive analysis by Borins J.A. as to the difficulties motions court judges encounter in determining whether the record before them discloses a genuine issue for trial, emphasized the restrictive scope of the judicial process created by Rule 20. The crux of Borins J.A.'s analysis was summarized by him at para.18:

In my view, the difficulty encountered by motions judges arises not so much because of any real problem in appreciating that the inquiry must focus on a genuine issue of material fact, but because of uncertainty concerning the role of a motions judge and that of a trial judge. Not infrequently, it is apparent from their reasons for judgment that some motions judges have come to regard a motion for summary judgment as an adequate substitute for a trial. In my view, this is incorrect and does not reflect the true purpose of Rule 20. This confusion of roles usually arises in the more difficult cases in which the parties have presented conflicting evidence relevant to a material fact.

Borins J.A. underscored this analysis in holding that a motions court judge should avoid or at least exercise caution, in making findings of credibility, drawing inferences from underlying facts and in weighing evidence.

Rule 20 was again considered by this Court in Transamerica Occidental Life Insurance Co. v. Toronto- Dominion Bank.11 In that case, the main issue was whether certain funds in a TD account were subject to a trust in favour of Transamerica. Transamerica argued that the funds were impressed with a trust, and also argued negligent misrepresentation by TD. TD brought a motion for summary judgment. The motions judge granted summary judgment in favour of TD on both the trust issue and the negligent misrepresentation issue.

Osborne J.A. stated at para. 49 that the core question on a summary judgment motion is: "has the moving party established that there is no genuine issue for trial." In the same paragraph, he noted that "the party responding to a summary judgment motion, in this case the Insurers, may not rest on the pleadings, but must provide evidence from which the motions judge can conclude that there is a genuine issue for trial."

Osborne J.A. also considered how issues of credibility should be examined in a summary judgment motion. He held at para. 50 that: "A motions judge, on a Rule 20 summary judgment motion, should not resolve issues of credibility, draw inferences from conflicting evidence, or from evidence that is not in conflict when more than one inference is reasonably available." However, he also stated at para. 51 that "the mere existence of an issue of credibility will not defeat a motion for summary judgment. The issue of credibility must be a genuine issue."

In the result, Osborne J.A. held that the motions judge erred in granting summary judgment on the trust issue. In particular, the motions judge erred on a number of occasions by weighing the evidence. This function should have been reserved for the trial judge. Osborne J.A. stated at para. 72:

Here, significant evidence is reasonably capable of supporting competing inferences. Therefore, the central determination in the fact-finding process, the weight to be given to the evidence - and the findings of fact to be made from the evidence, necessarily by inference, should be done at trial and not a paper record.

Osborne J.A. held that the motions judge was correct in dismissing the negligent misrepresentation claim. However, because there was a genuine issue for trial with respect to the trust argument, the motions judge should have dismissed the negligent misrepresentation issue pursuant to rule 21.01(3), which provides for summary judgment dismissing "part of" a claim.

Interlocutory vs. Final Orders

Two issues have arisen regarding the nature of summary judgment orders. The first issue relates to jurisdiction on appeal: to which court does one appeal a summary judgment motion? The second question involves issue estoppel: to what extent are the findings of the motions court judge binding on the judge at trial?

I will begin with the jurisdictional issue. Section 19(1)(b) of the Courts of Justice Act 12 provides that an appeal from an interlocutory order of a General Division judge lies to the Divisional Court. A final order is appealed to this Court.13 It is therefore necessary to determine whether an order for summary judgment is interlocutory or final before bringing the appeal.

This issue has at times been ignored. For example, in Dunlop Construction Products Inc. (Receiver of) v. Flavelle Holdings Inc.,14 Flavelle appealed the motions judge's dismissal of its motion for summary judgment. This Court considered the appeal without any analysis of jurisdiction to hear the appeal.

On the other hand, this Court in Hoffman Products Ltd. v. Karr15 and Place Concorde East Ltd. Partnership v. Shelter Corp. of Canada Ltd.16 considered the jurisdictional issue and decided that this Court had no jurisdiction to hear the appeals. The dismissal of a motion for summary judgment is interlocutory, and the appeal properly lies to the Divisional Court.

In a study of 79 summary judgment appeals to this Court in 1998 and 1999, summary judgment had been dismissed by the motions judge in 8 of the cases. Of those 8, only 1 passed through Divisional Court before arriving at this Court. Unfortunately, this Court rendered judgment in the remaining 7 cases without considering the jurisdictional issue at all.

Hopefully any confusion regarding the jurisdictional issue has been resolved by the judgment of this court in V.K. Mason Construction Ltd. v. Canadian General Insurance Group Ltd, supra. There, speaking for the court, I said that the difficulty the parties to summary judgment appeals have stems from a tendency to confuse motions under Rule 20 with those under Rules 21 and 22. The latter two rules deal with the determination of questions of law and are final. Accordingly, the appeal is directly to the Court of Appeal. It is also well accepted that when summary judgment is granted on a motion by either party to the litigation, the appeal is to the Court of Appeal.

However, as indicated above, there is some confusion with respect to the appellate venue when the motion for summary judgment is refused. Put simply, the confusion arises from the failure to fix on the motions judge's order, as opposed to his reasons. If judgment is granted, the litigation is at an end. The judgment is as final as if made after a trial. However, if the motion is dismissed, no matter what party brought it, there must be a trial. The proceedings are not over and the order is not final. It is interlocutory. The appeal is to the Divisional Court with leave of a judge of that court.

Do not be concerned about the motion judge's reasons, no matter how compelling, where he has dismissed a motion for summary judgment. They are nothing more than the explanation of the motions judge as to why he or she considers that there is a genuine issue for trial. At para. 14 of Mason, I specifically ruled that arguments as to res judicata and issue estoppel are of no concern on the issue of jurisdiction. As I concluded at para. 19:

Conceptually, it may be difficult to accept that where a plaintiff or defendant moves for summary judgment and succeeds, the appeal from that summary judgment is to this court as of right whereas if the moving party fails to obtain a summary judgment, the order dismissing the motion is to the Divisional Court, and only with leave of that court. However, the distinction has a long tradition in the law. The summary judgment finally determines the issue or issues between the parties and gives rise to a plea of res judicata in subsequent proceedings on the same issue or issues. An order dismissing a motion for summary judgment, on the other hand, determines only that there is a genuine issue for trial and the issue or issues have not been finally resolved. The remedy of appeal from such an order is restricted by the requirement for leave because the order reflects a failed attempt to reach a final resolution. It is incidental to the object of the litigation. If the unsuccessful party on such a motion obtains leave to appeal and succeeds on appeal in persuading the Divisional Court that the motions court judge was in error in denying the motion for judgment, the Divisional Court can give such a judgment. That judgment of the Divisional Court is clearly final and subject to appeal to this court.

I do not wish to leave this subject without allaying the concerns of the bar that the Court of Appeal has changed its focus in the last year or so and is no longer anxious to encourage the use of Rule 20. This is definitely not the case. I have set out in some detail the two judgments of Borins J.A., and the two cases of this court that followed them, to demonstrate that the initial approach of Morden A.C.J.O. in Ungerman, supra, is still the law.

In referring to the concerns of the Bar, I have in mind articles such as The Evolution of Summary Judgment in Ontario by Kenneth J. Kelertas that appears in The Advocates' Quarterly, vol.21, no.3. This is an excellent review of the development of the law on this subject, not only in Ontario but across Canada. I do however take issue with the author when he states at p.281:

Following Aguonie v. Galion Solid Waste Inc., and Dawson v. Rexcraft Storage and Warehouse Inc. the Ontario Court of Appeal's endorsement of the "robust" approach to the interpretation of Rule 20 is clearly in doubt.

And later at page 290:

Given that the Ontario Court of Appeal has, at the very least, backed off in its endorsement of the "robust" approach to Rule 20, is there a need for the rule makers in Ontario to start to consider amendments to the summary judgment rule in order to enhance its meritorious purpose of removing those matters from the trial list where a court room hearing would add nothing to their resolution? Given Mr. Justice Borins' fascination with Judge Wright's reasons in Jones v. Clinton, would a broader consideration of the American jurisprudence on point reveal any pearls of wisdom to assist our courts and legislators?

Conclusion

In my opinion, the present Rule 20 is more than adequate for its limited purpose which, as Mr. Kelertas has accurately stated, is to remove cases from the trial list that do not belong there because they have no genuine issues to be tried. In such cases, a full-blown trial would be a waste of the client's money and a misuse of scarce judicial resources.

However, on a quick review of the seventy-nine summary judgment appeals I have referred to above, of which 45% were allowed in whole or in part, I can report that the most common error on the part of plaintiffs was in attempting to make too generous a use of Rule 20. While the rule is not restricted as to category, it appears obvious to me that arising as it does out of the old concept of an action on "a simple contract debt", its most effective use is in breach of contract suits, actions for the recovery of loans, mortgage and other debt enforcement proceedings, agreements of purchase and sale of land or chattels and generally cases for the recovery of land or property or money where, if there is a defence, counsel can safely predict that it will be unsubstantial and directed only to delaying final judgment. In other words, cases where it is unlikely that there is a genuine issue for trial. A useful example where a defendant could consider being the moving party, is a limitation defence where though a factual base may be necessary, the facts themselves are not really in dispute.

The cases that founder, at least in our court, are where the party seeking summary judgment has been too ambitious and has attempted to enlarge the scope of the rule to include torts such as trespass and negligence or contract matters such as wrongful dismissal. In these cases, where more complex and controversial factual issues often arise, rule 20 will not normally be an appropriate mechanism for resolving the dispute.

Another common failing of counsel is to lose the emphasis on "simple" in the old Rule 33. Cases such as Transamerica and Mason, supra, were doomed to failure because they were too ambitious. The litigation involved more than one legitimate issue and the chances of not one of them raising a genuine issue for trial was just not realistic. While it is possible to sever some issues in a pleading and thus limit the scope of the trial, as a general rule I think that most judges feel that if the mater has to go to trial in any event, the whole problem should be canvassed by the trial judge. This can often apply where the defendant has made a counterclaim that has elements of setoff.

I appreciate that my remarks have been largely cautionary, but I do not wish to leave this subject without expressly encouraging counsel present to make full use of this most useful reform in our rules of practice. The advantages to the plaintiff are obvious: a speedy judgment for a meritorious case. While not as obvious to the defendant, the advantages of a speedy resolution of a dispute should be clear to his lawyer. He or she should face up to the reality of the client's exposure with a view to settling the matter, or as is often the case where the client is indebted to a financial institution, making realistic arrangements to satisfy the obligation. I am never more discouraged about the quality of advice that some clients are receiving than when I am forced to hear a meritless appeal involving what was once a manageable debt incurred by a person of some substance that has over the course of the proceedings increased through interest and legal costs to become a totally unmanageable debt that is now far beyond the ability of the unfortunate judgment debtor to pay.

It has been an honour and a privilege to address you tonight. I hope m remarks will prove to be of some assistance to you.

Summary Judgment Rules in 1984 and 1999

Rule 33 - 1984

33(1) At the option of the plaintiff, the writ of summons may be specially endorsed with a statement of his claim where the plaintiff seeks to recover a debt or liquidated demand in money (with or without interest and whether the interest be payable by way of damages or otherwise) arising,
(a) upon a simple written promise to pay or upon a written acknowledgement of debt; or
(b) upon a simple contract, express or implied, for goods sold and delivered; or
(c) upon a simple contract, express or implied, where the price or method of calculation of the price has been agreed upon for,
(i) work done or services rendered, or
(ii) work done or services rendered and for the supply and installation of materials; or
(d) upon a cheque, promissory note or bill of exchange; or
(e) upon an account settled between the parties in writing; or
(f) upon a bond or contract under seal for payment of a liquidated sum, but not including a claim for liquidated damages; or
(g) upon a judgment; or
(h) upon a statute where the amount sought to be recovered is a fixed sum of money or is in the nature of a debt other than a penalty; or
(i) upon a guarantee in writing where the claim against the principal is in respect of a debt or liquidated demand; or the writ of summons may be specially endorsed with a statement of his claim,
(j) in an action for recovery of land; or
(k) in an action for recovery of chattels; or
(l) in an action for foreclosure, sale or redemption.
(2) The writ in such cases shall be in accordance with Form 8.
(3) Where a writ is specially endorsed in respect of any of the above claims the plaintiff may also claim in respect of any other matter, in which case,
(a) the form of the command on the writ shall be so worded as to apply to each of such claims;
(b) the general endorsement shall be preceded by the words "and by way of general endorsement:"
(4) Before being issued, a writ which is specially endorsed shall be certified by the solicitor who issues it that he believes the claim is one that properly comes within this Rule.

Rule 42 - 1984

42(1) Where the writ is specially endorsed, the defendant shall with his appearance file an affidavit of merits made by the defendant or by any person having knowledge of the facts showing the nature of his defence, with the facts and circumstances which he deems entitled him to defend the action. ...

Rule 58 - 1984

58(1) Where the defendant files an appearance to a writ specially endorsed and delivers an affidavit of merits, the plaintiff may either move for judgment, or cross- examine upon such affidavit and thereafter move for judgment.
(2) On any such motion, where the court is satisfied that the defendant has not a good defence to the action or has not disclosed such facts as may be deemed sufficient to entitle him to defend the action, judgment may be given for the plaintiff.
(3) On any such motion, instead of granting judgment, the court may give the defendant leave to defend on such terms as seem just, or make an order for a speedy trial of the action with or without pleadings upon proper terms.
(4) Such motion may be made in respect of a cause of action specially endorsed, though the writ may also be endorsed with any other claim.
(5) Where a defendant does not dispute the plaintiff's claim but sets up a counter-claim, the court may stay proceedings respecting the claim until the counter- claim is disposed of.
(6) Where the defence disclosed applies only to a part of the plaintiff's claim, or any part of his claim is admitted to be due, the plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to, or as is admitted to be due, subject to such terms, if any, as to staying execution or payment into court as seem just, and the defendant may be allowed to defend as to the residue of the plaintiff's claim, or a reference may be directed under subrule (7).
(7) Where it appears that the defence disclosed is substantially only as to the amount recoverable, the court may direct a reference, and either pronounce judgment to take effect on the confirmation of the report, or reserve further directions and questions of costs for consideration after the report is made.

Rule 20 - 1999

20.01(1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.
(2) The plaintiff may move, without notice, for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just.
(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim. 20.02 An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01
(4), but on the hearing of the motion an adverse inference may be drawn, if appropriate, from the failure of a party to provide the evidence of persons having personal knowledge of contested facts.

20.03 On a motion for summary judgment, each party shall serve on every other party to the motion a factum consisting of a concise statement, without argument, of the facts and law relied on by the party, and file it, with proof of service, in the court office where the motion is to be heard, not later than 2 p.m. on the day before the hearing.

20.04 (1) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest on the mere allegations or denials of the party's pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial.
(2) Where the court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the court shall grant summary judgment accordingly.
(3) Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount.
(4) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly, but where the motion is made to a master, it shall be adjourned to be heard by judge.
(5) Where the plaintiff is the moving party and claims an accounting and the defendant fails to satisfy the court that there is a preliminary issue to be tried, the court may grant judgment on the claim with a reference to take the accounts.

20.05(1) Where summary judgment is refused or is granted only in part, the court may make an order specifying what material facts are not in dispute and defining the issues to be tried and may order that the action proceed to trial by being,
(a) placed forthwith, or within a specified time, on a list of cases requiring speedy trial; or
(b) set down in the normal course, or within a specified time, for trial.
(2) At the trial the facts so specified shall be deemed to be established and the trial shall be conducted accordingly, unless the trial judge orders otherwise to prevent injustice.
(3) Where an action is ordered to proceed to trial, in whole or in part, the court may give such directions or impose such terms as are just, including an order,
(a) for payment into court of all or part of the claim;
(b) for security for costs; and
(c) that the nature and scope of discovery, if any, be limited to matters not covered by the affidavits filed on the motion and any cross-examinations on them, and that the affidavits and cross-examinations may be used at trial in the same manner as an examination for discovery.
(4) Where a party fails to comply with an order for payment into court or for security for costs, the court on motion of the opposite party may dismiss the action, strike out the statement of defence or make such other order as is just.
(5) Where on a motion under subrule (4) the statement of defence is struck out, the defendant shall be deemed to be noted in default. ...

Rule 21 - 1999

21.01(1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial savings of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.

George D. Finlayson

_______________________________

1 The relevant summary judgment rules in 1984 and at present are reproduced at the end of this address.
2 (1991), 4 O.R. (3d) 545 (C.A.).
3 Rule 20.01(1) and (3).
4 (1989), 13 R.P.R. (2d) 102 (Ont. H.C.J.) at 135.
5 139 F.2d 469 (1943).
6 [1997] 2 S.C.R. 165.
7 Fidkalo v. Levin (1992), 76 Man. R. (2d) 267 (C.A.) at 267.
8 (1998), 164 D.L.R. (4th) 257 (Ont. C.A.).
9 990 F. Supp. 657 (1998), (U.S. Dist. Ct., E. Dist. Ar.).
10 [1998] O.J. No. 5291 at para.17.
11 [1999] O.J. No. 1195 (C.A.).
12 R.S.O. 1990, c. C.43.
13 Section 6(1)(b) of the Courts of Justice Act. 1
4 (1996), 31 O.R. (3d) 58 (C.A.).
15 (1990), 71 O.R. (2d) 734 (C.A.).
16 [1997] O.J. No. 4909 (C.A.).