By: Marc Whiteley (The Lawyers Weekly – May 2011)
It used to be straightforward: was or wasn’t there a genuine issue of fact for trial? Some recent Ontario Superior Court decisions have now upset that paradigm — and raised the question of whether motions judges are supposed to resolve spurious factual disputes, or find the facts.
The uncertainty that has crept into the law centres around changes in the summary judgment provisions of the Ontario Rules of Civil Procedure as part of former Associate Chief Justice Coulter Osborne’s civil justice reform recommendations. The amendments grant motions judges new tools to engage in the formerly prohibited exercises of weighing evidence, evaluating credibility and drawing reasonable inferences from the evidence.
What has become unclear is whether these changes were intended to simply aid motions judges in disposing of factually unsupported claims and defences, or transform the premise of summary judgment motions and even the role of trials and trial judges in Ontario. The two streams of law that have developed since the changes to the Rules took effect were recently canvassed by the Ontario Court of Appeal’s Justice Karen Weiler in Bruno Appliance and Furniture Inc. v. Cassels Brock & Blackwell LLP,  O.J. No. 263.
In her reasons, Justice Weiler described, on the one hand, the interpretations of Justices David Brown and Sarah Pepall, who have embraced an expansive reading of the cumulative effect of the changes to Rule 20 inLawless v. Anderson,  O.J. No. 2017 and Canadian Premier Life Insurance Co. v. Sears Canada Inc.,  O.J. No. 3987. Justice Brown remarked most recently in Optech Inc. v. Sharma,  O.J. No. 377 that viva voce evidence called by a motions judge under Rule 20.04(2.2)’s mini-trial provision was not a forensic right of a party, “but a decision of the motions judge that seeing and hearing live witnesses would assist in performing the fact-finding exercise now available under Rule 20.04(2.1).”
Justice Weiler noted, on the other hand, in Cuthbert v. TD Canada Trust,  O.J. No. 630, Justice Andromache Karakatsanis (as she then was) considered that while the analytical review and the availability of oral evidence had given motions judges new tools, it hadn’t changed the focus of the inquiry, writing that it was “not the role of the motions judge to make findings of fact for the purpose of deciding the action on the basis of the evidence presented on a motion for summary judgment.”
In her opinion, the changes to the Rule didn’t permit substituting “a summary trial for a summary judgment motion.” While Bruno didn’t resolve the split in the lower court decisions, there are reasons to doubt the shift in summary judgment practice advocated by Justices Brown and Pepall was intended by the Civil Rules Committee. In fact, it appears that if the shift was intended, it resurrects an issue long thought to be buried. If motions judges were meant to have the ability to find facts, wouldn’t the Civil Rules Committee have expressly drafted that jurisdiction into the Rules?
It’s clear Justice Osborne didn’t fault the “no genuine issue for trial” test in his report as the source of the perceived dissatisfaction with the former practice, nor did he disparage the absence of a fact-finding power. Instead, he highlighted the difficulties that had arisen from how the Court of Appeal had confined the scope of the analytical powers of the motions judge.
In light of these considerations, it’s reasonable to suggest that motions judges hearing summary judgment motions shouldn’t seek to read a power to find facts into the Rules.
At least since V.K. Mason Construction Ltd. v. Canadian General Insurance Group Ltd.,  O.J. No. 5291 (C.A.) it’s been understood, with the exception of affirmative findings on specific points, that if there is no genuine issue requiring a trial, the incidental findings of summary judgment motions judges don’t bind subsequent triers of fact.
After unsuccessfully moving for summary judgment, the defendant in V.K. Mason appealed out of fear that a trial court would consider itself bound by adverse findings made by the motions judge. In quashing the appeal, the court indicated the fear was unfounded, explaining that such findings were little more than explanations for the motions judge’s ruling on whether there was a genuine issue for trial. The court’s opinion highlights what has traditionally been at issue on a motion for summary judgment: the genuineness of factual disputes, not the adjudication of the facts themselves.
Given the current state of thelaw, practitioners bringing or defending summary judgment motions must now give serious consideration to the possibility of being bound by unexpected factual findings which other tribunals could treat as res judicata.The question is, will we see more appeals like the one brought in V.K. Mason where parties to a summary motion are concerned about the effect of incidental adverse findings of fact? It is too early to tell, but the issue is one with which practitioners will have to cope while the law remains uncertain.
For now, and as Bruno makes clear, it remains to be seen how the Court of Appeal will ultimately interpret the ends to hich the new powers granted to motions judges can be directed. It seems clearer that, as the techniques and methods of motions and trial judges converge, the distinction between their roles may, for all practical purposes, be fading away.