Last week I had the honour of chairing “An Evening Reception with Justice Myers” at the Ontario Bar Association. Justice Myers spoke about summary judgment motions and drafting proper motion materials.
SUMMARY JUDGMENT MOTIONS
Summary judgment motions are a procedure that can dispose of an action without the use of a trial.
Justice Myers emphasized how Hryniak v. Mauldin, 2014 SCC 7,  1 S.C.R. 87 changed the court’s approach towards summary judgment motions, citing paragraphs 44 and 59 in facilitating this change. The test for granting summary judgment motions went from: “is there a genuine issue for trial” to “is there a genuine issue requiring a trial”. This means that trials are no longer the default procedure. Consequently, counsel can ask themselves in each case: “can I use a summary judgement motion instead of a trial?”
I venture that many counsel do not use summary judgment motions in every case because of the energy and foresight required to put together a summary judgment motion. Currently, the civil court system rewards parties that delay preparation of their case to the later stages of the litigation life cycle.
In a summary judgment motion, counsel must address (1) why it is fair and just for a dispute to be resolved by way of summary judgment AND (2) why the case turns on a discrete issue. On a summary judgment motion, counsel must provide all the evidence that they would have used at trial. It is a return to the old days when trials took a day or two.
WRITING MOTION MATERIALS
In preparing motion materials, lawyers should avoid words like: surely, certainly, and obviously. Just get rid of them and use plain English. You are allowed to say “I attach” as opposed to “Attached hereto to this may affidavit is….”.
In the Notice of Motion, keep it brief. Carefully draft the relief sought. Force the judge to read your affidavit.
In an affidavit, lawyers should provide the facts that establish the relief sought. Too often lawyers indiscriminately throw in everything. Instead, highlight the important facts. And do not overstate your case. Judges hate being deceived.
Also, lawyers can dispense with the saying at the end of an affidavit: “This motion is made for no other improper purpose”. This saying came about in the time of writs, and it no longer serves any use today.
For factums, structure it accordingly:
- State what you want
- Address the key facts. Pinpoint the source of the fact.
- Address the law.
Again, I would like to thank Justice Myers for his time.