“Rule 16 of the Family Law Rules governs summary judgment in cases other than divorce. In Hryniak v. Mauldin, 2014 SCC 77 (CanLII), [2014] 1 S.C.R. 87, the Supreme Court of Canada said the following about summary judgment:
(a) undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. See ¶ 24; and
(b) the Ontario amendments to the summary judgment rule changed the test for summary judgment from asking whether the case presents a “genuine issue for trial” to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure. See ¶ 43.
Pursuant to rules 16(1) and 16(4), to obtain summary judgment, the moving party must set out specific facts showing that there is no genuine issue requiring a trial. Pursuant to rule 16(4.1), the responding party may not rest on mere allegations or denials. He or she must set out in his or her evidence specific facts showing that there is a genuine issue for trial. In short, each party must put his and her best foot forward regarding the existence or non-existence of material facts that have to be tried. See Karlovic v. Karlovic, 2018 ONSC 4233 at 39.
But even if the responding party’s evidence does not establish a genuine issue for trial, the Court must still be satisfied on the evidence before it that the moving party filed has established that there is no genuine issue requiring a trial. See Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at 80.
Pursuant to rule 16(6), if the Court finds that there is no genuine issue requiring a trial of a claim or defence, then the Court shall make a final order accordingly. There are additional fact-finding powers set out in rules 16(6.1) and 16(6.2) to which the Court may have resort under appropriate circumstances, to determine whether there is a genuine issue requiring a trial.
There is a two-step process for determining whether summary judgment should be granted. First, the judge must determine if there is a genuine issue requiring a trial based on the evidence, without using the additional fact-finding powers set out in Rule 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.
There will be no genuine issue requiring a trial when the Court is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process allows the Court to make the necessary findings of fact, allows the Court to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result. See ¶ 49 of Hryniak v. Mauldin. As the Supreme Court said in Hryniak v. Mauldin, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the Court confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” However, a process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute. See ¶ 50 of Hryniak v. Mauldin.
If there appears to be a genuine issue requiring a trial, based on the record before the Court, the Court should then determine if the need for a trial can be avoided by using the powers set out in rule 16 (6.1). These powers involve the weighing of evidence, evaluating credibility, and drawing inferences. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. See ¶ 66 of Hryniak v. Mauldin.
If there are concerns about credibility or clarification of the evidence, then those issues can also be addressed by calling oral evidence on the motion itself. See ¶ 51 of Hryniak v. Mauldin. This is the mini-trial procedure set out in rule 16 (6.2). This power should be employed when it allows the Court to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure. See ¶ 63 of Hryniak v. Mauldin.”