by Tali Green

In Scaffidi-Argentina v Tega Homes Developments Inc, Ontario’s Superior Court decided that Covid 19 means a “change in the calculus” of whether a party should be allowed to bring a summary judgment motion rather than be required to proceed to trial.

In June 2019, Justice MacLeod concluded that the matter ought not to be resolved by summary judgment. While his finding on other issues made this procedural question moot, he noted that the fact that a summary judgment motion “might be available” does not mean that the court will agree to schedule such a motion if “it may delay the trial, use significant resources, or otherwise run counter to the purpose of the rule or ot principles of proportionality and cost effectiveness…” While Justice MacLeod concluded that a summary judgment motion was not appropriate at the time, he noted that a future request to bring such a motion would be a decision “left to another day.”

That day came during COVID-19. On May 25, 2020, while the courts grappled with a global pandemic and no one knew when they would again resume normal operations, Justice MacLeod decided that a summary judgment motion made a lot more sense.

He explained that “the chaos which has now overtaken the court schedule means a change in the calculus and there is far less justification for the court to stand in the way of a party that wishes to exercise its right” to bring a motion for summary judgment.

He made additional observations that can shed some helpful light on the court’s short term and long term operations:

1. There is much uncertainty as to when a trial can again be scheduled, even after the courts “reopen”. Justice MacLeod noted that “it is impossible to predict if the trials now scheduled for September will be able to proceed…”, that “it would be foolhardy to add additional trials to the schedule”, and that he “cannot realistically schedule this trial in the latter part of 2020 or the first six months of 2021.” This should give parties some indication of a timeline for when their matter can be heard, and may encourage settlements or other dispute resolution processes.

2. The pandemic has made it a lot easier for the court to hear motions, and a lot harder to hear trials. Justice MacLeod noted that the court has, “with each passing week” obtained the experience, resources and technology to conduct more of its regular business in a digital setting. On the other hand, he wrote that “we are a long way from being able to conduct significant numbers of digital trials.” Because motions and applications are based on written evidence they are more likely to be heard by the court in a timely manner. In a post-Covid world, even when the trial backlog eases, litigants may find it easier to convince a court that a properly-conducted digital motion for summary judgment is more efficient and cost effective than a trial.