SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: 1318214 Ontario Limited, 1464167 Ontario Limited, 1469789 Ontario Limited, 1476182 Ontario Limited, 1478822 Ontario Limited, 2024036 Ontario Limited and 2144011 Ontario Limited, Plaintiffs

AND:

Sobeys Capital Incorporated, Defendant

BEFORE: D. M. Brown J.

COUNSEL:
S. Hall and D. Sterns, for the Plaintiffs

G. Moysa, for the Defendant

HEARD: May 7, 2012

9:30 Appointment endorsement

I. The scheduling dilemma: lengthy Post-Discovery summary judgment motion or trial?

[ 1 ] An emerging issue for civil litigation in the Toronto Region is the phenomenon of requests to bring lengthy motions for summary judgment following the completion of examinations for discovery – i.e. at a time when the action is nearing readiness for trial. Should the court devote scarce judicial resources to hear lengthy summary judgment motions when the court could hear the trial of the action within a reasonable time? [1]

[ 2 ] In this Commercial List action by Sobeys franchisees against Sobeys Capital Incorporated the parties have completed their productions and examinations for discovery. Counsel appeared before me seeking to set a timetable for further steps.

[ 3 ] Counsel for the plaintiff franchisees wishes to timetable all matters relating to undertakings and refusals, and also to set dates for a pre-trial conference and the trial, which he estimates will take two to three weeks. Counsel for Sobeys concurred with the timetable regarding undertakings and refusals, but advised that his client wants to bring a motion for partial summary judgment “to narrow the issues for trial”, and he sought dates for a one to two day summary judgment motion.

[ 4 ] In response plaintiffs’ counsel stated that his clients would resist the attempt to bring a summary judgment motion, and he sought a date for a motion to stay the defendant’s summary judgment motion. The very recent phenomenon of motions for directions to stay summary judgment motions traces its origins to the following passage of the Court of Appeal’s decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 : [2]

As we point out below…counsel have an obligation to ensure that they are adopting an appropriate litigation strategy. A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05. [3]

[ 5 ] Neither party filed any materials on this 9:30 attendance which would permit an assessment of the merits of their respective requests. I adjourned the 9:30 appointment so that I could issue directions concerning the information which the parties must file so that proper consideration can be given to their requests at the re-convened 9:30 appointment before me.

II. The timing of Rule 20 motions: Early Stage vs. Post-Discovery summary judgment motions

[ 6 ] Rule 20 permits a party to bring a summary judgment motion following the filing of statements of defence. On the plain language of Rule 20 a summary judgment motion could be brought at any stage thereafter in the life of an action before a trial commences. At one end of the life-cycle of an action a party might bring a Rule 20 motion before the completion of productions or the commencement of discoveries. The practical result of bringing an Early Stage Summary Judgment Motion is that the preparation of the evidentiary record for the motion, including cross-examinations, operates as something of a surrogate for the normal production and discovery process. Of course, counsel often take the position that the “targeted” nature of their examinations on such Early Stage motions should not foreclose additional discoveries, but proper case management can ensure that post-motion examinations do not cover ground previously tilled.

[ 7 ] At the other end of the life-cycle stand the summary judgment motions brought after all productions have been exchanged and discoveries completed. On these Post-Discovery Summary Judgment Motions the evidentiary record invariably draws upon the work product resulting from the discoveries.

[ 8 ] The guidance provided by the Court of Appeal in Combined Air Mechanical Services about when to use summary judgment motions was summarized recently by that Court in Precious Metal Capital Corp. v. Smith, 2012 ONCA 298 :

The question whether there is a “genuine issue requiring a trial” must be answered in light of whether a full trial is required for the judge to get a “full appreciation” of the evidence and issues required to make dispositive positive findings. The ultimate question is whether a trial is required in the “interest of justice”.

The court indicated that the “full appreciation” test would likely be met in cases that are largely driven by documents, in which testimonial evidence and contentious factual issues are limited…The test is unlikely to be met in cases in which there are multiple factual issues involving conflicting evidence from a number of witnesses and a voluminous evidentiary record… [4]

III. The factors which should guide a court in considering a request to schedule a lengthy Post-Discovery summary judgment motion

[ 9 ] In this case Sobeys seeks dates for a one or two day Post-Discovery summary judgment motion. What principles should guide a court when dealing with such a request and what information does a court require in order to evaluate the request? Similarly, what principles should a court take into account when a request to schedule a lengthy Post-Discovery summary judgment motion elicits a response from the other party for a date to bring a motion to stay such a summary judgment motion? Let me offer a few thoughts.

[ 10 ] I do not regard Rule 20 as giving a party an automatic right to bring a Post-Discovery summary judgment motion. The General Principle of Rule 1.04(1) and the principle of Proportionality of Rule 1.04(1.1), when coupled with the reality of scarce judicial resources and the risk that the motion might not end the action, impose on a party wishing to schedule a one day or longer Post-Discovery summary judgment motion an obligation to demonstrate, at a scheduling conference, that the benefits of allowing such a motion to proceed outweigh the risks that the motion might fail, thereby saddling the parties with an unnecessary layer of additional litigation costs. Let me expand on both points.

[ 11 ] The fundamental principles guiding a court’s consideration of such competing requests remain the General Principle of Rule 1.04(1) – securing the just, most expeditious and least expensive determination of every civil proceeding on its merits – and the principle of Proportionality in Rule 1.04(1.1) – giving directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. Those are the benchmarks against which requests to schedule Post-Discovery summary judgment motions or directions for stays of such motions must be measured.

[ 12 ] As to the scarcity of judicial resources, the reality-on-the-ground is that when considering any request for a Post-Discovery summary judgment motion a court will take into account how best to use its limited judicial resources to adjudicate fairly the dispute between two particular litigants. How scarce judicial time should best be used is a very real issue, the full dimensions of which often are not apparent to members of the Bar. Let us take, as an example, a typical two day summary judgment motion. Experience has shown that between one to two bankers’ boxes of evidence will be put before a court on such a motion, usually a combination of affidavits, other documents and transcripts of examinations. For a judge to prepare for such a motion by reading the factums and key documents to gain an overview of the issues usually requires the better part of one day. Then follows the two days of the hearing. Thereafter, the law requires the judge to give the evidence a “hard look” in order to assess whether he or she can gain a “full appreciation” of the issues disclosed by the record. That means the judge must read the entire record, just as a trial judge must listen to and read all evidence placed before him or her. In a two box-case that translates into up to 5 to 7 days of reserve time devoted to gaining a thorough understanding of the record. Then the judge must engage in the weighing of evidence, to the extent permitted by the record, and conducting the appropriate legal analysis. So, while counsel might view a two-day summary judgment as simply a two day affair for a judge, in reality a judge usually will have to devote the better part of two weeks to preparing, hearing, considering and deciding such a motion.

[ 13 ] To what end? Well, if the judge grants full summary judgment, the action might end, with an attendant saving of trial time. If the judge only grants partial summary judgment, a trial still must be held, with the further expenditure of time and costs. If the judge declines to grant summary judgment, then a “full” trial must be held, although the judge can give directions under Rule 20.05(2) to shape the trial and to make use at trial of as much of the work product from the summary judgment motion as possible.

[ 14 ] Bluntly put, if a risk exists that expending two weeks of judicial time on a two day Post-Discovery summary judgment motion might not result in a final adjudication of the action on the merits, what is the benefit to the justice system of expending that significant amount of scarce judicial time without some tangible result? In Precious Metal Capital Corp. the Court of Appeal stated that the ultimate question for consideration at the hearing of a Rule 20 motion “is whether a trial is required in the ‘interest of justice’.” By analogy, I think that on an attendance to schedule a lengthy Post-Discovery summary motion the ultimate question is whether the interest of justice is best served by scheduling such a motion or by requiring, instead, that the parties proceed to trial.

[ 15 ] One final observation. Although in Consolidated Air the Court of Appeal suggested that issues concerning the appropriateness of the timing of any summary judgment motion should be dealt with by way of a motion for directions pursuant to Rules 1.04(1), (1.1), (2) and 1.05, the specific scheduling procedures available on the Commercial List make it more practical to use 9:30 appointments, or perhaps a slightly longer case conference of 30 minutes or so, to seek the court’s direction on the issue. Formal motions for directions should be avoided to determine an issue which, at its heart, simply is a scheduling issue best dealt with by way of a more informal scheduling process.

IV. What information should be placed before a court when requesting a date for a Post-Discovery summary judgment motion?

[ 16 ] How does a party go about demonstrating that the benefits of scheduling a lengthy Post-Discovery summary judgment motion outweigh the risks that the motion might fail and impose unnecessary costs on the parties? Well, simply showing up at a 9:30 appointment and making an oral request, or giving oral assurances that the benefits most certainly will outweigh the costs, is not an appropriate way. More is required.

[ 17 ] Where one party wishes to bring a one day or longer Post-Discovery summary judgment motion and the other party opposes arguing, instead, that the court should set a trial date, in my view both parties should file on the scheduling appointment – a 9:30 appointment or short case conference – detailed, focused and reasoned (i.e. not speculative) information which will allow the court to answer the following questions:

(i) What will the proposed summary judgment motion look like?

(ii) What will the proposed trial look like?

(iii) If full or partial summary judgment were granted, what amount of pre-trial preparation and trial time would be saved?

Obviously counsel must co-operate, as professional officers of the court, in preparing this information for the court’s consideration. Let me offer some more detailed guidance about the specific types of information which I would like to see both parties file in order to assist the court on each question.

A. What will the proposed summary judgment motion look like?

[ 18 ] In order to paint a reasonably detailed and accurate picture for the court about what will be involved in the requested motion for summary judgment, both parties should address the following issues:

(i) Length of motion: How long will the motion take using a “real world”, not an “ideal world”, time estimate? How do the parties propose to divide the time at any motion hearing?

(ii) Issues: What specific issues will the court be asked to determine on the motion for summary judgment? Vague descriptions such as “breach of contract” or “breach of fiduciary duty” are not helpful. Specifics are required;

(iii) Affiants: Who will they be? What issues will they address? How long will their affidavits be? What period of time will the affiants cover in their affidavits – is this a case where the factual chronology spans a few weeks or several years? Has the affiant been examined for discovery? If so, how long was the discovery? Will the affiant be cross-examined? If so, for how long? Are there any issues about the availability of the affiant as a witness for the trial – e.g. illness, out-of-jurisdiction location, etc.? What, if any, issues are anticipated about the admissibility of the evidence offered by the affiants and how long do counsel expect the argument over admissibility to take?

(iv) Documents: Will the documents go in on consent? If not, what admissibility issues may arise? How many documents in total do the parties anticipate placing before the court on the summary judgment motion? How many key documents really are engaged by this case? Usually it is only a handful.

(v) Experts: Will there be any expert reports? If so, from whom and on what issues? Are the reports ready? How long will it take to prepare any responding expert report?

(vi) Prior examinations: What volume of transcripts from previous examinations do the parties intend to place before the court? From which witnesses?

(vii) Legal arguments: What legal issues will the parties address in their factums? What length of factums do the parties anticipate? How many legal authorities do the parties intend to ask the court to read?

B. What will the proposed trial look like?

[ 19 ] To enable the court to understand the alternative to a lengthy Post-Discovery summary judgment motion – i.e. a trial – the parties should submit information which details the following:

(i) Length of trial : How long will the trial take, broken down amongst time for opening statements, evidence, closing submissions and intra-trial motions?

(ii) Evidence: Each party should identify the witnesses they intend to call at trial and specify the anticipated lengths of the examinations-in-chief and cross-examinations for each witness, including the expert witnesses;

(iii) Documents: How many documents do the parties anticipate adducing at trial? How many documents may be contested?

(iv) In-trial motions: What motions, if any, do the parties anticipate bringing at the start of or during the trial? How much time should be allocated for each motion?

C. If full or partial summary judgment were granted, what amount of pre-trial preparation and trial time would be saved?

[ 20 ] If full summary judgment is granted either dismissing an action or granting judgment in favour of the plaintiff, obviously the entire amount of anticipated trial time would be saved. However, if only partial summary judgment is requested, the moving party should provide the following information:

(i) What issues – factual and legal - would no longer require an adjudication at trial?

(ii) Identify which witnesses, including expert witnesses, would not need to testify at trial or what reduction in the length of their overall trial testimony might occur;

(iii) Identify the anticipated reduction in the number of documents which would be filed at trial;

(iv) Identify the anticipated reduction in the length of opening and closing submissions;

(v) Provide an overall estimate of the anticipated reduction in the length of the trial.

[ 21 ] The responding party should provide the court with the following information:

(i) Does the responding party agree with the anticipated trial time savings submitted by the moving party? If not, the responding party should detail the reasons for its disagreement;

(ii) The responding party should identify the areas in dispute upon which it is prepared to agree on the facts.

V. Concluding comments and specific directions to the parties

[ 22 ] Armed with all this information the judge considering the request to schedule a lengthy Post-Discovery summary judgment motion should be in a much better position to understand how, if at all, the hearing of the motion might satisfy the General Principle and the principle of Proportionality, as compared to setting a date for the trial of the action.

[ 23 ] May I offer a concluding comment? Counsel should no longer think of a trial as a “one size fits all” procedure. Our Court is open to creative ways to structure and conduct trials, including using hybrid written and viva voce records. Often the use of creative ways to present the evidence and argument at trial goes a long way towards addressing the concerns of litigants about the costs involved in going to trial.

[ 24 ] Against that background, by way of specific directions to the parties in this proceeding, counsel shall consult and file with me, through the Commercial List Office, the information which I have specified in paragraphs 18 to 21 above. Once they have done so, they should book a 9:30 appointment (if they truly anticipate the scheduling discussion will only take 10 minutes), or a 30 minute case conference, if they think a bit more time is required. Whatever its form, that appointment should be booked before me for a date which is no later than June 1, 2012.

D. M. Brown J.

Date : May 14, 2012

[1] I n the summer of 2011 I presided for two weeks over the Toronto Region Civil List Motions Scheduling Court. At that time dates for full day summary judgment motions only were available 7 to 8 months out, or in early 2012. By contrast, dates for Civil List short trials (two weeks or less) were available within 6 to 8 weeks. I dealt with roughly 30 to 40 requests for full day summary judgment motions. When offered an earlier trial date, only one set of litigants accepted. I was stunned. There is something fundamentally wrong with a litigation culture which prefers the delay and uncertainties associated with long summary judgment motions over the availability and adjudicative certainty of a trial. This cultural problem must be fixed.

[2] 2011 ONCA 764 .

[3] Ibid. , para. 58.

[4] 2012 ONCA 298 , paras. 8 and 9 .