Last week the Supreme Court of Canada came out with its long awaited decision in the Combined Air Mechanical Services Inc. v. Flesch omnibus ruling.  The appeals were dismissed; however, the Supreme Court found the Court of Appeal’s full appreciation test too burdensome and creates a new Roadmap/Approach to be used on Summary Judgment motions.

The test is as follows:

1. The judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, withoutusing the new fact-finding powers.
   1. There will be no genuine issue requiring a trial if the summary judgment process provides the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure
2. If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).  She may, at her discretion, use those powers, provided that their use is not against the interest of justice.
   1. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

The Supreme Court further clarifies that, while judgment must be granted if there is no genuine issue requiring trial, it is discretionary whether the judge uses either the expanded fact-finding powers or to call oral evidence.

In regards to proportionality, the Supreme Court agreed with the Court of Appeal in that a motion for directions should be brought before a motion for summary judgment where it is evident the record would be voluminous or complex.

Lesson Learned: Summary judgment is back and kicking.

Until next time

Jasmine Sweatman/Jennifer Stebbing