A new test for Motions for Summary Judgment – The Full Appreciation Test

Clients often ask to get judgment or their case dismissed quickly by just speaking with the Judge. While this is not possible, the Rules of Civil Procedure do allow for a Motion for Summary Judgment to put the case or certain issues before a Judge early on in the litigation process for a quick judgment. The Court of Appeal recently considered the test for a motion judge to consider on a Motion for Summary Judgment in the case of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (CanLII) The Court made a decision which marks a new departure and fresh approach to the interpretation and application of Rule 20 of the Rules of Civil Procedure.
The Court of Appeal has ruled that in deciding whether to use the powers in Rule 20.04.(2.1), the motion judge must ask the following question: “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”
The full appreciation test continues to recognize the established principles regarding the evidential obligations on a summary judgment motion including the proposition that both sides must put their best foot forward. It will be interesting to see how motion judges apply the full appreciation test.