Summary Judgment: the Right Tool for the Right Job

  • Summary judgment can provide a party with a way to rapidly resolve a dispute.
  • Where there is no issue genuinely requiring trial, the Court may issue a summary judgment, if just, expeditious and inexpensive to do so.
  • The key is to a successful motion is to prepare the evidence that will allow the Court to conclude that there is no genuine issue for trial.

When project relationships break down or an invoice goes unpaid for too long, contractors face the decision of whether or not to involve the Court to resolve the dispute. This can be a difficult decision, given the costs and delays of litigation, particularly when the disputed amounts are relatively small or timelines are tight.

Since January 2018, parties bringing legal proceedings in Manitoba have benefited from new summary judgment rules, which allow a judge to resolve a matter without going to trial.

Where the Court determines there is no genuine issue requiring a trial, it will grant summary judgment, and the parties can avoid many of the steps normally required to bring a matter to trial. The Court can also rule on questions of law, or refer the matter to a master where the only question is the amount owed between the parties. It is, in effect, a trial result without a formal trial.

Manitoba’s summary judgment procedures take into account the nature of proceedings, the amount at issue, their complexity as well as their likely expense; they are largely inspired by the Ontario Civil Rules of Procedure, and the decisions of that court are influential in Manitoba. As a result, legal proceedings should no longer allow parties to hide behind questionable defences raised simply to delay or frustrate payment.

Even when a motion for summary judgment does not completely resolve the dispute, the Court has the power to undertake case management, setting strict timelines for the completion of milestones and generally simplifying the file wherever possible. It therefore provides parties with a useful tool to streamline proceedings and reduce costs.

While a motion for summary judgment provides an opportunity for a prompt resolution of a matter, a party bringing the motion must provide the Court with sufficient evidence to conclude that there is no issue requiring a trial. As a result, parties should be sure they have all of the evidence in order before attempting to bring a motion for summary judgment.

In Third Line Homes Inc. v. Grant, 2019 ONSC 4159, the Ontario Superior Court of Justice dismissed a motion for summary judgment where the plaintiff, a residential home developer, was unable to present evidence that there was no issue requiring trial.

Third Line sought judgment for the payment of a final instalment of a residential home, in the amount of $57,171.41. Third Line hoped to avoid trial by showing the Court that this matter related simply to an unpaid invoice.

The defendant, however, invoked a lack of substantial completion as well as uncorrected deficiencies to justify the refusal to pay the final instalment to Third Line. To further complicate matters, the defendant was refusing to allow the plaintiff the opportunity to correct the deficiencies. Questions persisted as to whether Third Line was responsible for damages related to moisture penetration. Neither party had provided expert evidence on this issue.

The Court rejected the motion for summary judgment. What had begun as a relatively straightforward unpaid invoice had blossomed into a hotly contested dispute where unremedied deficiencies persisted, and where mould may have developed. In these circumstances, the Court had no problem concluding that there were genuine issues requiring trial. The Court was critical of the parties’ failure to present expert evidence, implying that, had it received an affidavit from an expert, the motion may have been decided differently.

The 2018 modifications have ensured that the motion for summary judgment will remain a very useful tool to accelerate the resolution a dispute, or even to simplify proceedings and set milestones that will allow for the rapid resolution of a dispute. The lawyers in the construction law practice area at MLT Aikins are available to assist you in determining if your dispute lends itself to a motion for summary judgment.

This article first appeared in Build Manitoba, a publication of the Winnipeg Construction Association. 

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.