Summary Judgment – “Motion for Directions”
Written on March 29, 2012.
Beware the newest fad for counsel responding to your motion for Summary Judgment….the “Motion for Directions”.
One aspect of the recent Ontario Court of Appeal decision in the Combined Air
case that some have overlooked is the CA’s endorsement of the bringing of a “motion for directions” as a sort of pre-emptive strike against a SJ motion.
I recently faced such a motion, brought after discoveries had long since been completed. The allegation was that I had filed “too many” affidavits, and that the issues were too complex and there were too many factual issues in dispute for Summary Judgment to be an appropriate way to deal with the matter of my client’s continued involvement in the lawsuit.
I was rather surprised to have to respond to a challenge to the decision to bring a SJ motion. After all, my client had a right to bring such a motion under Rule 20. The rule was intended to bring certain matters to a swift and inexpensive conclusion, and now my client was faced with an expensive “pre-motion” to the SJ motion! So much for an economy of legal expense and time.
One would also think that the Judge hearing the SJ motion would be in the best position to “fully appreciate” the evidence filed and the issues to be dealt with on the motion, and whether the motion was premature or inappropriately brought. If the “full appreciation test” is good for the SJ motion itself, why not the motion for directions?
Preparing for the motion, I went back to the Combined Air
decision, and reviewed the commentary regarding these “motions for directions”. Paragraphs 57-58 of the decision lay the foundation for such a motion:
 However, we add an important caveat
to the “best foot forward” principle in cases
where a motion for summary judgment is brought early in the litigation process. It will
not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the
nature and complexity of the issues demand that the normal process of production of
documents and oral discovery be completed before a party is required to respond to a
summary judgment motion. In such a case, forcing a responding party to build a record
through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.
 Moreover, the record built through affidavits and cross-examinations at an early
stage may offer a less complete picture of the case than the responding party could
present at trial. As we point out below, at para. 68, 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. (emphasis added)
I am glad to say that my client’s motion was neither premature or inappropriate.
In the end, in my recent case, the opposing counsel’s motion for directions was dismissed with costs of $2,000 payable to my client.
However, a valueable lesson was learnt, and those bringing a SJ motion in this new era post Combined Air
should be wary of the foregoing!