Simplified Procedure provides litigants with many of the powers they would have under the Ordinary Procedure but at the same time streamlining some of the features of Ordinary Procedure that seem to make Ordinary Procedure expensive. For one, parties under the Simplified Procedure are limited to examining all parties for three hours in total. Another, there is no right of cross-examination on an affidavit on a motion.
In recent years, the judicial thrust to making litigation more efficient and purportedly less expensive, through the decision of Hryniak v. Mauldin, 2014 SCC 7 and amendments to the Rules of Civil Procedure which now permit judges presiding on summary judgment motions being able to exercise powers of assessing credibility and weighing of a witnesses’ evidence, have made summary judgment motions a useful tool for litigants. For example, in the world of employment law it has become common to bring a summary judgment motion to adjudicate the matter entirely. In other areas, such as mortgage enforcement, it has also become common ground to use summary judgments.
In other areas, there is still a gap, for example in complex commercial litigation, the litigants are hesitant to bring a summary judgment given the significant costs exposure to the moving party. Well, at least their lawyers are hesitant. Perhaps the same can be said about personal injury.
As stated above, under Simplified Procedure, cross-examining is not permitted on an affidavit on a motion. Therefore, a party bringing a summary judgment and the responding party will not have the automatic right of cross-examining. In cases whether there is conflicting evidence this can create a problem for all parties and the Court to be able to adjudicate the matter.
In a recent case, Lewis v. Blue Star Ford Lincoln Sales Ltd., this issue was raised in the employment law context. A party brought a summary judgment in an action that was governed by Simplified Procedure. The Court found there was conflicting evidence on a material issue. The Court citing a Court of Appeal decision in Singh v. Concept Plastics Limited, held that the test for granting summary judgment in an action governed by Simplified Procedure will generally not be met where there is significant conflicting evidence on issues confronting the motion judge.
The Court in Singh reasoned that if there is unfairness that results from the unavailability of cross-examination, then the Court must explain why and how the potential unfairness due to the unavailability of cross-examination is addressed by the materials filed on the motion.
Singh has effectively made it clear that if the conflicting evidence is not resolved by the materials filed, then a Court should not grant a summary judgment.
The Court in Lewis found the material issue of mitigation needed to be resolved. It would be unfair for the employer to not be able to cross-examine. The Court ordered a “minitrial” to resolve conflicting evidence as it viewed “it would not be expeditious, less expensive, nor an appropriate means of achieving a just result” to dismiss the summary judgment motion and remit the action to a full trial.
Parties must think carefully on which procedure work best for their case. Risk exposure and costs containment should always be front of mind. In this case, the Plaintiff perhaps may have increased its legal fees by bringing a summary judgment motion when it could have simply continued the action to a summary trial. Alternatively, it could have used the Ordinary Procedure and then bring a summary judgment motion before discoveries. This perhaps may have been the most efficient.
Of course, each case must be respected and considered distinctively on its own facts.
Disclaimer: This is not legal advice. Contact us for specialized advice catered to your unique set of facts.