“The principles laid down by the Supreme Court in Hryniak are important. There has been a fundamental change in how motions judges have been called upon to apply the law as it relates to a motion for summary judgment. Much of the change has been positive. However, the facts of this case and the facts of Amelin demonstrate how litigants have shifted the responsibility for laying out the facts through the trial process to the motion judge, who must sift through a mountain of paper in the hope of reaching a fair and just determination on the merits without the need for a trial.
The actual hearing of the motion for summary judgment may only take a day. The preparation for the motion for summary judgment, including the drafting of affidavits; the preparation for and attendance at the cross-examinations of the deponents to those affidavits; and the preparation of factums, are time consuming and expensive. One may seriously question, on the facts of this case, like many that the court sees, whether that time and effort represents much in the way of any saving for the litigants. Certainly, if the motion is unsuccessful, there has been unnecessary delay and expense in getting the case to trial.
What is also lost on the litigants is that, after the motion has been heard, the motion judge then has the responsibility of sifting through a mountain of paper. The motion may have been argued in a matter of hours, but the motion judge’s job is far from over. Put also in the context that many judges are circuiting from courthouse to courthouse with ever changing assignments, it is not always possible to release a judgment in the time expected by the litigants. Where the court is confronted with two banker’s boxes of material as was the case before me, counsel and their clients should seriously consider if the case is one where the court can truly conclude that there is no genuine issue for trial. Some may argue that regardless of the volume of material, it is still possible, after argument and time, to reflect that the court can do justice to the principles laid down in Hryniak. I entirely disagree. With the pressures imposed on the court by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, it will be a rare case that a motions judge in a busy centre such as Newmarket, can dedicate the time necessary to review two banker’s boxes of material before moving on to various criminal trials previously assigned in that judge’s calendar.
The volume of material that was filed in this case, in my view, should have made it self-evident to the parties and their counsel that this was not the kind of case that was suitable for a motion under Rule 20. There are serious credibility issues between the parties and the various witnesses, that make this case an obvious case where the court cannot be satisfied that it can reach a fair and just determination. The motion is dismissed.”
Mak (Estate) v. Mak, 2019 ONSC 2710 (CanLII) at 18-21