The majority of Court cases settle before reaching a trial. One of the reasons is that litigation can be lengthy, time consuming and costly, and it often makes sense for the parties to seek a negotiated resolution rather than having the Court decide.
Of all the steps in the litigation process, the trial stage is usually the costliest and requires the longest wait time. In Ontario, trial dates in the Superior Court of Justice are often scheduled more than a year and a half or two years in advance, depending on the Court location and the length of trial.
For that reason, it is common for the parties (and particularly the plaintiff) to look for ways to speed up the process and avoid a full-blown trial. The most common way to do this is by bringing a summary proceeding: either a Summary Judgment motion or a Summary Trial.
It is important to note that the following applies only in Ontario, but other jurisdictions may have similar procedures.
Summary Judgment Motions
After pleadings are exchanged, either party may bring a motion for Summary Judgment by moving under Rule 20 of the Rules of Civil Procedure. The Court will grant Summary Judgment – i.e., either siding with the plaintiff and granting Judgment on their claim, or siding with the defendant and dismissing the claim – if the Court is satisfied that there is no genuine issue requiring a trial.
While each jurisdiction has its own process, in Toronto a party seeking to schedule a Summary Judgment motion is required to attend Civil Practice Court and convince the presiding Judge that a Summary Judgment motion is the most appropriate way to determine the case. The Court has discretion to decline the party’s request to schedule a Summary Judgment motion and will do so if the Judge believes that:
- the case is at too early a stage to schedule such a motion,
- if the case requires a trial to determine the issues in dispute,
- if the case is more appropriate for a Summary Trial, or
- for any other reason.
It is increasingly common for the Court to order the parties to attend a case conference before a Summary Judgment motion can be scheduled, and sometimes even to attend discoveries or mediation before the motion is heard.
At the hearing of a Summary Judgment motion, the Judge can order one of three things:
- Grant Judgment on the plaintiff’s claim;
- Dismiss the action; or
- Decide that the case is not appropriate for Summary Judgment and order a trial or another step to take place.
While Summary Judgment motions were very common in employment law cases several years ago, more recently the Court has been discouraging this practice and has encouraged parties to schedule Summary Trials instead.
A Summary Trial is another form of summary procedure which avoids a full-blown trial. The main differences between a full trial and a Summary Trial are that in a Summary Trial, the parties may provide evidence by affidavit, rather than through live testimony, and the length of the trial has a maximum of 5 days.
Specifically, a Summary Trial follows the following procedure:
- Each party may make an opening statement.
- The plaintiff may adduce evidence by affidavit.
- A party who is adverse in interest may cross-examine the deponent of any affidavit served by the plaintiff.
- The plaintiff may conduct a re-examination of any deponent who is cross-examined.
- When any cross-examinations and re-examinations of the plaintiff’s deponents are concluded, the defendant may adduce evidence by affidavit.
- A party who is adverse in interest may cross-examine the deponent of any affidavit served by a defendant.
- A defendant may conduct a re-examination of any deponent who is cross-examined.
- When any cross-examinations and re-examinations of the defendant’s deponents are concluded, the plaintiff may, with leave of the trial judge, adduce any proper reply evidence.
- After the presentation of evidence, each party may make oral argument.
As things currently stand, it is a lot faster to get a date for a Summary Trial than a regular trial, and there is no big difference between the wait time between a Summary Trial and a Summary Judgment motion.
One big advantage of a Summary Trial over a Summary Judgment motion is that in a Summary Trial, the Court will always make a final decision one way or another. That is not always the case with a Summary Judgment motion, as the Court may decide that the case is not appropriate for Summary Judgment and decline to render a Judgment. That could leave the moving party back to square one, after having incurred significant legal fees and spent considerable time on a Summary Judgment motion.
Furthermore, in recent years many Court locations are encouraging parties in employment law cases to proceed by way of Summary Trial rather than Summary Judgment. For instance, in the case of Tarbhai v. Element Fleet Management, the Court refused the plaintiff’s request to schedule a Summary Judgment motion in a wrongful dismissal case, and instead scheduled a Summary Trial along with a timetable for the action. We have had similar experiences at the Civil Practice Court in Toronto.
It is important to note that a Summary Trial is the default procedure for all cases that are proceeding under the Simplified Procedure, which generally applies to cases in which the damages claimed are under $200,000.00. However, given the Court’s jurisdiction to control its own processes, it is open to the Court to order a Summary Trial for any case, including those in which the plaintiff seeks damages above $200,000.00. We have obtained such an order in a case where we argued, and the Court agreed, that a Summary Trial would be the appropriate procedure for hearing the case.
Choosing the proper procedure for having your case heard is an important part of litigation, which can mean the difference between having your case linger for many years and having a just, expeditious, and cost-effective determination of the case on its merits.
If you have any questions about your situation or if you would like to get legal advice, please feel free to contact us.