On January 1, 2010 the Ontario Rules of Civil Procedure underwent a number of changes. One of the most significant of which was the change to the rules for Summary Judgment. The new onus required of the moving party is to satisfy the court that, “there is no genuine issue requiring a trial with respect to a claim or defence.”
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Prior to the amendment to the Rules, the test for summary judgment was “no genuine issue for trial.” The ostensible purpose for changing the word “for” to “requiring” was to lower the burden on the moving party.
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In one of the first decisions to canvass this change of wording, Langille v. Toronto (City), 2010 ONSC 443, the Honourable Justice Eva Frank held that despite the semantics little had changed. Her Honour wrote:
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The well established principles as to the obligations of both sides on motions for summary judgment, with the necessary adjustments for the recent change in the summary judgment rules, apply to the determination of whether a trial is required… The moving party has the burden of showing that the claim does not raise a genuine issue requiring trial and the responding party has an evidentiary burden to put forward some evidence in support of its position – it “must lead trump or risk losing’. (Meditrust Healthcare Inc. v. Shoppers Drug Mart, (2002), 61 O.R. (3d) 786 (C.A.))[1]
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Her Honour then went on to quote newly-added Rule 20.02(2) as “clarifying the obligations of the responding party.” Rule 20.02(2) provides that:
In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.[2]
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It is respectfully submitted, however, that Rule 20.02(2) is simply a re-articulation of what was Rule 20.04(1). That rule, revoked as of January 1, 2010,[3] provided that:
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In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest on the mere allegations or denials of the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial.
Justice Frank provided no further analysis with respect to the onus issue, or what impact the change in wording was to have.
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Although Her Honour disposed of the Action by way of summary judgment, holding that she could resolve issue of whether or not the City of Toronto had suffered prejudice by the Plaintiff’s failure to deliver the proper statutory notice without the need of a trial, the court provided little guidance as to why a trial was not required.
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Perhaps Langille was not the test case Ontario lawyers had been hoping for. The facts were relatively straightforward, and little needed to be said as to whether or not a trial would be “required”. It was simply plain and obvious that one was not.
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Nonetheless, as other cases move forward it will be interesting to see what, if anything, the courts do with this wording change. To truly move beyond semantics, something more than the “well established principles” will have to be considered.
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[1] Langille v. Toronto (City), 2010 ONSC 443 at para. 19
[2] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 20.02 (2) as amended by O. Reg. 438/08, s. 12 [emphasis added], Tab 2.
[3] O.Reg. 438/08, ss. 13 (1), 68 (1).
Tags: Rule 20, Rules Changes, Summary Judgment
