The Tool Of Summary Judgment Motions for Creditors

Contributed by Kevin Klayman, Gasee, Cohen & Youngman
Barristers & Solicitors and CAGT Board Member

If one of my clients, usually a collection agency or a credit granter, has instructed us to sue on a debt, they usually want the process to go two ways: cheaply and quickly.   The Court rules have provided me with one very useful option in moving the case towards judgment quickly: a summary judgment motion.

A summary judgment motion allows me to bring a motion in front of the Court, usually right after a defence is filed, and ask the Court for judgment.  The motion would consist of only affidavit evidence.  If we are successful and the Court grants judgment in favour of the credit granter, we avoid the necessity of a pre-trial, a trial and everything in between.   The goal is save both time and money by avoiding a lot of litigation steps and obtaining a quick judgment.

As we use it, the summary judgment motion is a party’s attempt to prove to a judge that there is no defence to our claim that money is owed.   We are basically stating that there is no need for a trial or any other Court procedure, as there is simply no defence.  Our argument is that our affidavit evidence, and the affidavit evidence as presented by the debtor/defendant, is all the Court needs to make a decision.  Nothing more will be in front of a judge at trail and therefore, it would only be right and just if the judge granted us judgment at the motion and spared the parties and the Court system the expense of proceeding further.

When I started out, the judge’s test for granting summary judgment, was whether “there was a genuine issue for trial”.   In other words, the judge tried to determine whether there was any issue or element of the case that required a trial (and which could not be decided at the summary judgment motion).  If the judge felt a trial was needed, and the evidence at the motion was not enough to determine a central issue, the motion would be dismissed and the case would proceed to its next step.

As time passed, and the rules changed a little, the test for summary judgment got a bit broader.  This meant, to some extent, that summary judgments were more easily obtained.   Instead of (or sometimes mixed in with) the issue as to whether there existed a genuine issue for trial, the Court leaned on the question as to whether cross-examinations needed to happen.  They also took into account the issue of fairness and whether it would be prejudicial if judgment was granted at the motion.  In other words, the judges asked whether they needed to see the whites of somebody’s eyes at a possible trial, or whether a decision as to judgment could only be fairly decided at a trail (with more than written evidence)  The judge also asked whether it would be fair to the debtor if there was no trial.     If a judge felt that the lack of a trial would be not be unfair, and that not there was no need to personally assess a witness, judgment was usually provided at the motion.

But theCcourt precedents and rules have changed once again.  A “genuine issue for trail” and the need for cross-examination tests, have been replaced with the “full appreciation test”.     The Court of Appeal recently stated “in deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”

Have I lost you yet?  Further, the Court goes on to state that the motions judge must determine if he or she will require “an opportunity to hear and observe witnesses, to have evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand”   So unless “full appreciation” of the case can be obtained at the summary judgment motion, the motion judge must allow the issues to be determined at a full trial (and thus one loses the summary judgment motion).

This means that a defendant may possibly raise the notion that further evidence may be obtained during later Court proceedings (such as examinations) and therefore, the motions judge is unable to have “full appreciation” of all the evidence and issues.  Summary judgment will not be granted under those circumstances.

This Appeal Court ruling is very recent and so there is little certainty as to how the lower Courts will apply it.  What I won’t do though, is recommend bringing a summary judgment motion if the case is complex or if credibility issues exist or are central. In addition, motions in which a judge could easily conclude that more information and evidence is needed, are also to be avoided.

Because all judges are just individuals, with their own perspectives and biases, every case ends up being decided through unique eyes.  Some judges are famously “anti-bank”, some have sympathy for unrepresented parties with weak statements of defence, and some have no tolerance for debtors who are clearly trying to avoid paying back money that should properly be paid back.  These unique perspectives are combined with a unique set of facts for each case and ever changing rules and precedents.   

While the summary judgment motion is potentially a great tool to save both time and money, it must be considered only in circumstances where there is enough certainty and evidence to leave the Court no option but to grant judgment.  In such circumstances, it will indeed save the right party, time and money.