The Basics

Either party to a law suit may apply by motion to a judge seeking a final judgment to end the case. This eliminates the need for a trial and may minimize costs.

The first question the judge must decide is whether there is “no genuine issue” warranting a trial based on the evidence before the court. Usually the parties submit affidavits setting out their respective case, on which cross-examination is allowed. The judge does not typically hear live witnesses, but rather relies on this written record of testimony.

Even if the judge does see that there is such a “genuine issue”, the court may use its powers to determine if it is just and fair to conclude that no trial is required.[1]

This is a process which can often assist the court in ending a case with reduced costs. Often, indeed, where the sole issue may be the determination of a legal issue such as the validity of a contractual term or even what the period of notice should be, both sides to the dispute may agree to decide the case in this manner.

Recent Case

Jeffrey Hopkins of the firm recently appeared in a case acting for an employer, opposing the use of the summary judgment process and successfully so.[2]

The case is illustrative of a situation where the parties present competing versions of events, and importantly, without any evidence of a concrete nature to corroborate each assertion. This was so as allegations of performance issues had been made to justify termination and hence these diametrically opposed and unsubstantiated allegations went to the core issue to be decided by the court.

In this context, the judge agreed with the plea offered by Mr. Hopkins that there was indeed a “genuine issue” for trial. As to the secondary question of whether the court should avail itself of its expanded fact determining power under the Rules, the judge again was persuaded that this would be of no avail as the court required the presence of the actual persons at trial to determine important credibility issues.

The Result

The motion for summary judgment failed. The case will follow through the normal course to trial. The plaintiff did achieve a fortunate costs disposition. Even though the motion was lost, there was not an immediate costs order made against him for the motion, which is frequently the order made. In this instance, the costs were deferred to the judge at trial.

Employers’ Lesson

This success of this decision swayed on the apparent absence of a “silver bullet” proving the case of either party. The employer here had no option but to defend the motion, as was done.

Employees’ View

The employee should take a cautious view of the motion for immediate judgment in this context. However, where there is no cause allegation, or a particularly strong provable case for the employee, it may be a valued tool. In addition, such a motion may often accelerate the need for the employer to decide on a settlement position. This is a means of a remedy to be used with precision. It often will have serious costs repercussions when unsuccessful.

Get Advice and Know Your Rights

Summary judgment remains an important process. It may be initiated by either party and when done with care may reduce costs and advance the case. This issue is important to both parties. For advice on this issue from either side, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.


[1] Rule 20.04(3.1) and (3.2)

[2] Bhasin v 2356937 Ontario, known as Towneplace Suites Marriott