Toronto civil litigator Patrick Summers says a recent decision raises tactical questions around bringing motions for summary judgments.
In Zhu v. Matadar, 2015 ONSC 178 (CanLII), the plaintiff, Tie Hong Zhu, was injured in a motor vehicle accident that occurred in 2007 and she commenced her action against the defendants, Mohmed Arif Matadar and Musa Vali, two years and 21 days after the accident. The defendants brought a summary judgment motion to have the plaintiff’s claim dismissed as barred by the Limitations Act, 2002, S.O. 2002, c. 24.
Justice Paul Perell dismissed the defendants’ summary judgment claim, and then turned the tables on the defendant and awarded the plaintiff partial summary judgment, dismissing the limitation defence of the defendant “notwithstanding” that the plaintiff “did not bring a cross-motion for summary judgment.”
Summers, partner with Birenbaum Steinberg Landau Savin & Colraine, says this case, there was a motor vehicle accident and counsel for the defendant brought a motion for summary judgment alleging the plaintiff’s claim was statute-barred. That sometimes can be a straightforward motion, but under the Limitations Act the issue of when you knew, or ought to have known, you had a claim can became crucial, particularly in this case, where the issue was when the plaintiff knew, or ought to have known, her impairment was permanent,” he says.
In allowing the plaintiff summary judgment without a motion being asserted to that effect, Perell cites King Lofts Toronto I Ltd. v. Emmons (CanLII), an appeal of a lower court decision originally decided by Perell, in which the Court of Appeal agreed with Perell’s basic reasoning that a court does not always require a cross-motion for summary judgment on a motion for summary judgment like in Zhu.
Summers notes the Court of Appeal in King Lofts writes, “The Supreme Court of Canada in Hryniak v. Mauldin,) has approved a ‘culture shift’ requiring judges to manage the process in line with the principle of proportionality in the application of Rule 20,” which can lead to the allowance of summary judgment being given without formal notice of motion.
In Zhu, Perell endorsed that type of culture shift, Summers says.
Summers says the decisions in King Lofts and Zhu should also be viewed as a cautionary tale against bringing motions for summary judgments, in some circumstances.
“This ‘culture shift’ of not requiring a cross-motion for summary judgment can impact a number of issues: Most basically, you will run the risk when you bring a motion for summary judgment that it might be turned against you and you also have to defend your own case,” he says.
“Secondly, it means that a summary judgment motion could cost your clients a good deal more to bring because your materials are going to have to be more comprehensive and protective of your own position in the litigation. You’re also going to have to have a greater sense of your case at an earlier stage.”
Summers says that because summary judgment can occur before discovery, you may not know as much as you need to about your own case, which means that cross-examination also becomes more important, as do affidavits you prepare for the summary judgment motion.
Perell, in Zhu, also noted that given the very robust approach to summary judgment promoted by the Supreme Court of Canada’s judgments in Hryniak and Bruno Appliance and Furniture Inc. v. Hryniak is not surprising that the court has noted that there is an uptick in summary judgment motions.”
Summers says while there may have been an uptick in summary judgment motions, he wonders whether this will continue if we see more decisions like those in Zhu and King Lofts.
“If I’m a party to litigation, I am going to think twice about bringing a motion for summary judgment because it might be safer to wait until trial to have an issue determined, when issues can be been more fully fleshed out and counsel have a fuller appreciation of their cases,” he says.
“One might decide that it is too risky to bring my own motion for summary judgment at an earlier stage,” Summer says. “The ‘culture shift,’ then, might be illusory given decisions like Zhu and King Lofts.”