Inventory of Reforms

Federal Court Rules – Summary Judgement and Summary Trial (Rules 213 to 219)

Year:
2009

Description:
Federal Court rules governing summary judgments and summary trial procedures.

Status:
Permanent Implementation

Jurisdiction:
Federal

Court:
Federal Court of Canada
Federal Court of Appeal

Body Responsible:
Rules Committee of the Federal Court of Appeal and the Federal Court

Timeline:
October 2006: Discussion Paper circulated by the Rules Committee
January 2009: Proposed Rules published in Canada Gazette
December 2009: Rules came into force

Publications:
Summary Disposition of Cases
Rules Amending the Federal Courts Rules (Summary Judgment and Summary Trial)
Proposed Amendments to the Federal Courts Rules

Development:
Responding to concerns that the current summary judgment Rule 216 contained in the Federal Court Rules is too restrictive in scope, the Federal Courts Rules Committee circulated the Discussion Paper on October 13, 2006 to discuss possible alternatives. A subcommittee received and considered comments from judges of the Federal Court of Appeal and the Federal Court, as well as from members of the Bar. The majority of the comments supported the proposal.

The proposed rule amendments were then drafted, modifying the current rules governing motions for summary judgment and introducing a summary trial procedure. The proposed changes were premised on Rule 18A of the BC Rules of Civil Procedure. These were further discussed within the subcommittee, as well as at a meeting of the Federal Courts Rules Committee. The draft amendments were also discussed in 2007 and 2008 at the Bench and Bar Liaison Committee meetings. The majority of the members were in agreement with the proposal.

Following a pre-publishing in January of 2009 and consultation, the Rules came into force on December 10, 2009.

Purpose:
[The Rules] modify the existing rules on summary judgment found in Rules 213 through 219 by among other things, adding a summary trial procedure…

Motions for summary judgment may be granted by the Court where there is no genuine issue for trial. Such motions are based solely on the evidence adduced by the parties in their motion records (e.g. affidavits or other documents). The availability of summary judgment allows for the efficient disposition of actions, in whole or in part, where a trial to hear a full range of evidence is unnecessary.

The current judicial interpretation of the summary judgment rules limits the instances in which summary judgment will be granted. The jurisprudence requires that a motion for summary judgment be dismissed where an issue of credibility arises or where there is conflicting evidence and the outcome of the motion turns on the drawing of inferences. Thus, the existing provisions for summary judgment in the Federal Court do not provide the flexibility needed to manage the Court’s caseload efficiently by the expeditious disposition of cases that do not require a full trial.

These amendments also clarify the evidentiary burden that must be met by a party to a summary judgment motion in accordance with the existing jurisprudence…

Description of Reforms:
Final Rules Description and Rationale
The Rules Committee of the Federal Court of Appeal and the Federal Court (the “Committee”) has determined that the administration of justice would be better served by the incorporation of a summary trial procedure, similar to that found in rule 18A of the British Columbia Rules of Court, into the Federal Courts Rules. Such an amendment allows the Court to dispose summarily of actions in a greater range of circumstances than is permitted under current rule 216(3). These amendments also serve to give the parties greater control over the pace of their litigation.

The rules governing summary judgment are therefore amended to establish a summary trial proceeding in addition to motions for summary judgment. These amendments enable the Court to determine an issue or action by way of summary trial even though there is conflicting evidence or issues of credibility which, prior to these amendments, would have required a full trial.

The amendments also permit a party to bring a motion for summary trial where, in the party’s opinion, there are genuine issues that could be determined without a full trial.

These amendments expand the number of instances in which an action may be disposed of summarily providing greater flexibility to the parties and to the Court and enhancing access to justice.

The amendments also clarify the evidentiary burden on a party responding to a summary judgment motion to make it consistent with recent jurisprudence.

Final Rules
Final Rules Technical Description
The following amendments were made:

• Rule 50(1)(c) is amended to clarify that a prothonotary does not have jurisdiction to hear and determine a motion for summary trial.
• Rule 81(1) is amended to clarify that the exception which allows affidavits on information and belief to be filed in support of motions is not applicable to motions for summary judgment or summary trial.
• Rule 213(1) is amended to allow a party to bring a motion for summary judgment or summary trial prior to the time, date and location of the trial having been fixed. The Committee notes that the Court continues to have an overriding power to dispense with compliance with any of the Rules in special circumstances pursuant to rule 55.
• Rule 213(2) is replaced by a provision which limits a party to bringing one motion for summary judgment or summary trial. Subsequent motions pursuant to rule 213(1) may only be brought with leave of the Court.
• A new rule 213(3) requires the moving party to serve and file its motion record at least 20 days prior to the date set for the hearing of the motion. New rule 213(4) provides for a deadline of 10 days before the hearing date for any responding materials to be served and filed.
• New rule 214 clarifies the evidentiary burden on the responding party to a motion for summary judgment to render it consistent with recent jurisprudence.
• Rule 215(3) replaces former rule 216(3). Rule 215(3)(a) gives the Court the power to proceed to determine an action or issue by way of a summary trial even where it is satisfied that there is a genuine issue of fact and law for trial. The Court may make any order necessary for the conduct of the summary trial.
• Rule 215(3)(b) empowers the Court to dismiss a motion for summary judgment in whole or in part and order that the matter proceed to trial and be specially managed thereby allowing the matter to move forward as quickly as possible.
• Rule 216 is added to provide a summary trial mechanism. It sets out the type of evidence which may be adduced [216(1)]; delineates the scope of rebuttal evidence by the moving party [216(2)]; empowers the Court to make any order necessary for the conduct of the summary trial including an order requiring a witness to attend for cross-examination viva voce before the Court [216(3)]; permits the Court to draw an adverse inference where a party fails to cross-examine or file responding or rebuttal evidence [216(4)]; sets out the circumstances in which the Court may dismiss the motion for summary trial [216(5)]; empowers the Court to grant judgment if satisfied that there is sufficient evidence for adjudication [216(6)]; gives the Court the power to make any order necessary for the disposition of the action [216(7)]; and, if the motion for summary trial is dismissed, gives the Court the power to order that the matter proceed to trial and be specially managed [216(8)].
• Rules 217 to 219 are amended to include judgments under new rule 216 (summary trials).
• Rule 218(c) of the French version is amended to better reflect the wording of the English version.
• Rule 297 is amended to preclude motions for summary trial being brought in simplified actions (as is set out in rule 292 regarding actions in which each claim is exclusively for monetary relief in an amount not exceeding $50,000 or, on motion, the Court orders that the action be conducted as a simplified action).
• Rule 366 is amended to include motions for summary trial.

Final Rules

Concerns Expressed in Relation to the Draft Rules and Response Thereto
Rule 81: A concern was raised about the inadmissibility of hearsay evidence in summary judgment and summary trial motions. More particularly, IPIC questioned whether this amendment would increase cost and reduce the flexibility of the Court process by limiting the type of evidence available to a party. However, the Committee noted that evidence adduced in a summary judgment motion may be filed in a subsequent summary trial motion. It would be inappropriate to conduct a summary trial on the basis of hearsay evidence; allowing hearsay on a summary trial motion would also lead to possible motions contesting the admissibility of that evidence thereby result in further delay and expense.

Rule 213(1): A concern was raised about the amendments which appear to limit the flexibility of a party to bring a motion for summary judgment or trial at certain times in a proceeding. The committee reviewed the comment and concluded that in view of the rules governing case management, as well as Rule 55 which allows the court to vary or dispense with compliance in special circumstances, no change to the proposed amendment was necessary.

Rule 215(3): A comment was made about the possibility that a motion for summary trial would be scheduled immediately after being converted from a motion for summary judgment. The Committee noted that any issue in relation to the timing of a subsequent motion for summary trial could be addressed by the parties at the outset of a summary judgment motion. As well, the Committee noted that the amendment provides the Court with a wide discretion to make orders or directions in relation to the conduct of a summary trial. Finally, the Court is bound to interpret the Rules in accordance with the principle of fairness set out in Rule 3 which would require that parties be given sufficient time to present their position.

Rule 216(1): The CBA-IP section recommended that the deadlines for filing memoranda of fact and law in summary judgment motions be modified to allow for written representations to be filed after the motion records. The Committee noted that similar timelines for summary judgment motions have been in existence since the coming into force of the Federal Courts Rules in 1998. Moreover, the majority of actions in the Federal Court are case managed which, pursuant to Rule 385, creates an inherently flexible framework for the management of such procedural issues.

Rule 216(3) [now rule 216(5)]: IPIC noted that the proposed rule permitted the Court to dismiss a motion for summary judgment on its own motion. IPIC raised a concern that such a discretion may permit the Court to dismiss a motion for summary trial without hearing submissions from the parties to the motion. The Committee noted that in light of the fairness principle set out in Rule 3 of the Federal Courts Rules a party would always be entitled to make submissions before the Court dismissed a motion of its own initiative.

Another comment made in relation to rule 216(5) [now Rule 216(3)] recommended that the permissive term “may” found in the proposed rule be replaced by the mandatory word “shall”. The Committee agreed with this suggestion as it would be inappropriate to continue the hearing of a motion for summary trial where a party has established that the motion falls within the scope of rule 216(3) [now 216(5)].

Rule 216(4) [now Rule 216(3)]: It was recommended that the proposed rule should specify when orders in relation to the cross-examination of witnesses will be made to facilitate the preparation for hearings. The Committee concluded that this concern was likely the result of the wording “on or before” which may have led to the belief that the Court would ask parties to present witnesses at the hearing without notice. The wording “on or before” has been removed to address this concern. Additionally, all of the rules in the Federal Courts Rules are to be interpreted in light of the fairness principle set out in Rule 3 which would require that a party be given sufficient time to properly present a witness.

Revision History:
This summary was last reviewed in Aug 20, 2013