Summary Judgment can be an effective tool for obtaining justice faster and less expensively than through a trial. Most jurisdictions have, within the last decade, changed their rules in order to encourage more types of cases to proceed for determination in this fashion. In a summary judgment application, the parties can avoid lengthy oral testimony in court and instead submit their evidence to the court in writing through sworn affidavits, attaching all of the relevant documents. The court simply reads the record provided, considers the legal submissions made by lawyers for both sides, and makes a decision.
This procedure is especially appropriate when the case is document-driven and the court only has to interpret what the documents say and give them legal effect. Summary judgment becomes less appropriate in cases where there is inadequate documentary support and key issues must be determined based solely on the eye-witness recollections and testimony of individuals. In such cases, the ability of judges to observe witnesses as they testify and answer questions in cross-examination becomes crucial in fulfilling their fact-finding role and making just determinations.
The majority of cases, however, do not fall neatly into one or the other of these two categories. There may, for example, be substantial agreement on the facts between the parties for most of the issues; but one thorny issue may be highly important and rest on the credibility of witnesses, thus upsetting the whole applecart and throwing the possibility of summary judgment into question. The rules of court have tried to address this situation by giving judges enhanced fact-finding powers and the discretion to order a mini-trial of that one issue so that summary judgment can still be granted. In Saskatchewan, for example, as in most other jurisdictions, judges can: (i) weigh the evidence, (ii) evaluate the credibility of the deponent, and (iii) draw any reasonable inference from the evidence. Furthermore, “a judge may order that oral evidence be presented by one or more parties, with or without time limits on its presentation.”
These rules make it possible for application judges to resolve limited factual disputes on a summary judgment application when the issues in dispute are, overall, appropriate for summary judgment. It is also open in some cases for application judges to grant partial summary judgment on some of the issues and send the other issues to trial, when the issues can be neatly severed so that the risk of inconsistent decisions on the same matter becomes remote.
Despite the options available to judges to try to achieve justice efficiently and affordably through summary judgment in a variety of different kinds of cases and situations, various decisions have also warned parties against putting only partial evidence before the court and relying on the discretion of the court to allow further evidence to build one’s case piece by piece as holes in the evidence are pointed out by the application judge. The reason is obvious: it is not the judge’s job to help the parties put their cases together. A judge who embarks on this type of venture compromises his or her neutrality and may be seen as trying to help one of the parties to the detriment of the other.
One recent example is Iron Bridge Estates Inc. v Somerset Farms Ltd., 2019 SKQB 164. That action involved the developer of a residential subdivision in the City of Moose Jaw suing the developer of an adjacent condominium development. The City had determined that both developments would depend on the same sewage lift station. Negotiations took place between the parties. The plaintiff residential subdivision developer, Iron Bridge, ultimately went ahead and built the station with the apparent understanding that the condominium developer had agreed to a pro-rata share of the construction cost of the lift station. The defendant condominium developer, Spring Creek Properties, however denied any such agreement. Iron Bridge filed a builders’ lien on Spring Creek’s land and sued Spring Creek for this unpaid debt. The matter then sat dormant and did not move to trial for some time.
After five years, Spring Creek applied to have the lien removed on the basis that no action had been set for trial within the two-year statutory period required in the Builders’ Lien Act. Iron Bridge, like many lien-holders, was apparently hoping that the lien alone would compel Spring Creek to pay without the expense of a judicial proceeding. Sometimes this works. Sometimes however it does not and lienholders need to be aware of the risks they take with this kind of strategy.
Iron Bridge Estates, in an apparent effort to save its lien, cross-applied seeking summary judgment against Spring Creek. In dismissing the summary judgment application, the application judge noted that a number of key relevant facts were missing from the plaintiff’s materials. The plaintiff had not explained on what basis a 40% sharing of cost was appropriate. It had not shown that the lift station cost 40% more because of the condominium’s use than it would have otherwise cost. It had also not been shown what percentage of the sewage that goes through the lift station would come from the condominium versus the residential development. With regard to the existence or non-existence of such an agreement, the court found that the evidence of important witnesses was missing and should have been included.
While the court was asked to exercise its discretion to allow the plaintiff to fill the holes in the record, the court found that it would be inappropriate to do so on the basis that these holes should have been anticipated from the outset. The court thus appears to have been concerned that it would be seen as doing too much to help the plaintiffs by using its discretion to allow them to contested holes in the evidence this crucial to the application. The court found that it was incumbent on the applicant for summary judgment to put its “best foot forward” and provide all of the relevant evidence at the outset. In deciding as it did, the court relied especially on the following quote from Magna Electric Crop. v Tesco Electric Ltd., 2015 SKQB 35:
75 The defendant rightly points out that on summary judgment applications, particularly for damages, the plaintiff should not be allowed to “float trial balloons” to see whether their claim can be established and then to get another chance if the matter was directed onto trial. However, that observation applies equally to the defendant. On a summary judgment application generally, the parties have an obligation to “put their best foot forward” to allow the court both to determine the application of the summary judgment rules and, should they apply, to determine the appropriate assessment of damages in the case before it.
The court granted the application to remove the lien on the basis that there was no reasonable excuse for Iron Bridge’s failure to move it to trial after five years. The court found that the allegation by Iron Bridge that the parties had agreed to hold the action dormant and seek settlement outside the courts was not supported by sufficient evidence.
Although summary judgment can be useful to resolve even complex matters with some facts and issues of credibility in dispute, it is incumbent on the party seeking summary judgment to put forward all of its evidence on key issues and not rely on the application judge to give it a second chance to fill gaps. This is especially true in jurisdictions like Saskatchewan, where cross-examination is not an automatic right and the judge must be satisfied that there are real disputes in the evidence. Cross-examination will generally be granted to resolve disputes in the evidence, not to fill important holes.
Where issues of credibility must be resolved through the enhanced fact-finding powers of an application judge, the applicant must still identify exactly what the particulars of its position are and what its evidence, if believed, is. Failure to put its best foot forward may leave the applicant deprived of this remedy and facing the expense and time investment of a full trial. On the other hand, a respondent that fails to put its best foot forward could have summary judgment granted against it even if it has a meritorious claim or defense that could have succeeded.
Finally, it is risky to allow a lien action to lie dormant in the hopes that the matter will settle at some point in the future when the owner wishes to sell its land. If the parties do agree to pursue extrajudicial settlement and hold the action dormant for this reason, it is incumbent on them to get evidence of such an agreement in writing. The longer the delay is, the stronger the evidence of such an agreement will need to be in order to hold the action in abeyance. The plaintiff in the Iron Bridge case appears to have been rushed into putting its summary judgment application together precisely because it was not proactive in advancing its action and waited until it had to respond to the defendant’s application to remove the lien. A proactive litigant will generally be better prepared than one that is simply reacting.
If you are in a construction or lien dispute, please contact the author at firstname.lastname@example.org to explore all of your litigation options.
 Saskatchewan Court of Queen’s Bench Rule 7-5.