Without Prejudice, January 2013, 12-17
the balance of the liability evidence is weighed clearly in favour of one or
more defendant, explore the use of Summary Judgment with your counsel. The new
Summary Judgment Rule governing these motions has allowed courts to weigh
evidence more broadly than before and is now being used in the context of BI
claims. Success at this type of motion will stop an action dead in its tracks.
Failure will lead to cost consequences, but these are not as punitive as those
mandated by the previous version of the Rule. When balancing risk exposure
associated with litigation costs, one should recognize the benefit of
eliminating the overall claims exposure in exchange for risk of failure.
The Old Rule
And Why We Did Not Use It Very Much.
insurers have been reticent to instruct counsel to proceed with Summary
Judgment motions. The old Rule required a responding party, the plaintiff, to
show the court that there was a “genuine issue for trial”. Typically, this
meant that in a “he said, she said” situation, a court would defer the matter
to trial. After all, what could be more of a genuine issue for trial than
assessing credibility? But even where credibility was not an issue, courts
showed an aversion to dismissing actions without hearing from the parties. Over
time, the practical application became narrower and narrower. To make matters
worse, failing at the old motions carried very heavy costs consequences
(designed to prevent parties from bringing frivolous motions and tying up
valuable resources). Accordingly, insurers generally instructed counsel in
these types of motion only if the issue was a “slam dunk” such as missed
The New Rule
Summary Judgment Rule changed in 2010, but it took some time for the Court to
interpret it. The new Rule
allowed judges to weigh the evidence and importantly, evaluate the
credibility of a witness. Judges could draw any reasonable inference from that
evidence. The fact that courts could now evaluate credibility meant that this
might no longer be a “genuine issue for trial”: cases could theoretically be
dismissed at Summary Judgment when credibility is a live issue. Given that
Summary Judgment motions are primarily decided by courts based upon written
materials, such as affidavits and transcripts of cross-examination of those
affidavits, deciding credibility issues could be difficult, but possible.
What Did It
Guidance came in the seminal case of Combined Air
Mechanical Services v. Flesch.
The Court of Appeal stated judges 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?”
Court went on to instruct that a full appreciation could be made in a Summary
Judgment where there is limited testimonial evidence or limited contentious
findings. Judges must be able accurately assess the evidence and draw
inferences without actually hearing live witnesses (which may be used in some
Applied In a Personal Injury Action Where Liability Was
In the recent case of Clarke v. Arena the
Plaintiff, Clarke, sued a number of people involved in a multiple vehicle
collision including one Mr. Beggs. The Dominion of Canada was added in respect
of unidentified vehicle coverage. The core issue was whether or not one of the
several defendants would attract 1% liability thereby relieving the Dominion of
its exposure. The Dominion then brought a Summary Judgment motion. The Dominion
specifically argued that Mr. Beggs
caused the collision. Mr. Beggs argued it was not
him but a mystery vehicle. All other witnesses more or less agreed it was
likely Mr. Beggs’ vehicle. The Plaintiff and all the co-defendants, except Mr.
Beggs, consented to the motion.
The judge had to decide whether or not the conflict
between Mr. Beggs’ version and the other witnesses’ versions was a genuine
issue for trial. This required the judge to assess credibility in the absence
of a live hearing. Under the previous Rule, Dominion’s chance for success would
have, for all intents and purposes, been nil. But under the new Rule, the judge
examined the affidavits and transcripts of the cross-examinations and concluded
that Mr. Beggs’ version had “little, if any, chance of being believed or
accepted by any trier of fact, be it a jury or a justice of this court.” A
trial on this issue would have been unnecessary and consume resources
needlessly. Accordingly, Summary Judgment was granted.
What This Means for Us?
Clarke v. Arena is
instructive since it demonstrates that conflicting evidence including
credibility can be reconciled at a Summary Judgment motion in the context of a
BI claim. It is noted that the Plaintiffs’ claims were not dismissed; only the action as against the identified vehicle insurer, and thus the decision should be read with some caution. However, since issues of liability are often quite limited in BI claims, Summary Judgment motions should be considered more often where the bulk of the evidence clearly weighs in favour of or more defendants.
 Rule 20.04(2.1), Rules of Civil Procedure, R.R.O., Reg. 194.
 (2012), 108 O.R. (3d) 1
 Idem., at para 50
 (CanLII 2012ONSC5557, October 2, 2012)
 Idem, para 12