“In Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32, Corbett J. described the current approach to summary judgment motions following the Supreme Court of Canada’s decision in Hryniak, as follows:
Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.
The guidance that the Supreme Court gave in Hryniak as to how Rule 20 should be applied to promote timely and affordable access to the civil justice system applies equally to how Rule 16 should be applied in the family law context. Karakatsanis J., on behalf of the Supreme Court, noted that such motions are an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial, in favour of proportional procedures tailored to the needs of the particular case. At para. 49, she stated:
There will be no genuine issue requiring a trial when the judge 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 (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.
Karakatsanis J. held that the judge hearing a motion for summary judgment must compare the procedures available in such a motion, supplemented, if necessary, by the fact-finding tools provided by Rules 20.04(2.1) and (2.2), (similar to Family Law Rule 16(6.1) with those available at trial, to determine whether the court can make the necessary findings of fact and apply the principles of law to those facts in a proportionate, most expeditious, and least costly manner, to achieve a just result:
…Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures….It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Para. 57)
If there appears to be a genuine issue requiring a trial, I must exercise my discretion to determine whether the need for a trial can be avoided by using the powers under Rule 16(6.1), provided their use will not be contrary to the interests of justice and will lead to a fair and just result, and serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole: Hryniak, at para. 66.
If a genuine issue is found, Rule 16(6.1) empowers the court to determine if a trial can be avoided by:
(1) weighing the evidence;
(2) making credibility findings on the evidence; and
(3) drawing reasonable inferences of fact from the materials filed.
In the alternative, the Court may also direct a mini-trial or focused hearing under Rule 16(6.2) for any issues remaining on the motion for summary judgment.
A partial summary judgment will be ordered when it is clear that bifurcating the issues would result in a more expeditious, cost-effective, and just conclusion of the matter, having regard to Rule 2(2) of Family Law Rules, which prevides that the purpose of the Rules is to “enable the court to deal with cases justly”: Milne, supra, at paras. 89-90; Rules, Rule 2(2).”