Legal insight and perspective from the Steinbergs Team
Published: June 30, 2026
Category: Litigation
In Ontario civil litigation, a client will often face a strategic decision: proceed toward trial or attempt to resolve the case earlier by bringing a motion for summary judgment under Rule 20 of the Rules of Civil Procedure.
A summary judgment motion asks the court to decide all or part of a lawsuit without a full trial. The test is whether there is a “genuine issue requiring a trial.” Since the 2010 amendments to Rule 20 and the Supreme Court of Canada’s decision in Hryniak v. Mauldin, summary judgment has become a much more important tool in Ontario litigation. The courts have been directed to use the procedure in a practical and proportionate way, where it can achieve a fair and just result without the cost, delay, and burden of a conventional trial.
The law has not been fundamentally rewritten since 2014. However, the Ontario Court of Appeal has clarified several important points that matter to clients deciding whether to bring, defend, or avoid a Rule 20 motion. The most significant developments are:
The purpose of this article is to explain, in practical terms, when summary judgment may be preferable to trial and when it may be strategically unwise.
A Rule 20 motion is a request for judgment before trial. It is usually based on affidavits, documents, transcripts from cross-examinations, expert evidence where required, and written and oral argument.
The court may grant summary judgment if it is satisfied that there is no genuine issue requiring a trial. In making that decision, the judge has enhanced powers. The judge may:
The judge must still be satisfied that using these powers will lead to a fair and just determination. If the case cannot be fairly decided on the motion record, the matter should proceed to trial.
In practical terms, summary judgment is not a procedural shortcut in the casual sense. It is a merits-based hearing. A party bringing or responding to the motion must assume that the judge may decide the case finally.
The leading foundation remains Hryniak v. Mauldin, where the Supreme Court of Canada required a cultural shift toward more proportionate, affordable, and timely adjudication. Ontario courts continue to apply that approach.
Since then, the Ontario Court of Appeal has emphasized several practical limits and refinements.
First, the Court of Appeal has confirmed that complex cases are not automatically unsuitable for summary judgment. If the record is complete and the judge can fairly decide the issues, summary judgment may be available even in factually or commercially complex litigation. The Court of Appeal’s decision in The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, illustrates that the complexity of a case does not, by itself, require a trial.
Second, the Court of Appeal has become increasingly cautious about partial summary judgment. In Butera v. Chown, Cairns LLP, 2017 ONCA 783, the court warned that partial summary judgment can sometimes increase cost, delay, and the risk of inconsistent findings. That caution has been reinforced in later decisions, including Mason v. Perras Mongenais, 2018 ONCA 978, and Malik v. Attia, 2020 ONCA 787. The practical message is clear: a motion that resolves only a fragment of the case may not be worth bringing unless it produces real efficiency or materially changes the litigation.
Third, a moving party must understand that a Rule 20 motion may backfire. The Court of Appeal has confirmed that, in appropriate circumstances, the responding party may obtain judgment even without bringing a formal cross-motion. This was recognized in cases such as Meridian Credit Union Limited v. Baig, 2016 ONCA 150, and remains an important strategic risk.
Fourth, the courts continue to require parties to put their “best foot forward.” A party cannot hold back evidence for trial and then complain that the motion record is incomplete. If summary judgment is brought, the parties are expected to present the evidence necessary to support or defeat the motion.
As of 2026, the core question remains practical: can the court fairly and proportionately decide the dispute, or a clearly severable part of it, without a full trial?
A trial is expensive. Trial preparation involves discoveries, undertakings, expert reports, pre-trials, witness preparation, trial management, and the trial itself. A summary judgment motion may reduce or avoid some of those steps.
Where the case turns on documents, admitted facts, a narrow legal issue, or a limited evidentiary dispute, a Rule 20 motion may be significantly less expensive than trial.
That said, summary judgment is not always cheap. A serious motion may require extensive affidavits, cross-examinations, expert evidence, transcripts, factums, and motion preparation. If the motion fails, the client may have paid for the motion and still face trial.
The key question is not whether summary judgment is less expensive in theory. The question is whether it is likely to be less expensive in this specific case.
Summary judgment may bring the dispute to an end much earlier than trial. This can be particularly valuable where:
For some clients, early finality is as important as the dollar result.
A well-prepared summary judgment motion may create settlement pressure. It forces the opposing party to confront the evidence and legal merits earlier than they might prefer.
Even if the motion does not dispose of the entire action, it may narrow the issues, expose weaknesses, or create a more realistic settlement environment.
If the court does not grant full summary judgment, it may still make directions that improve the efficiency of the case. The court may identify facts that are not genuinely disputed, define the real issues for trial, order procedural steps, or otherwise streamline the matter.
This can be useful. However, it must be weighed against the risk that the motion becomes an expensive detour.
If the court finds that the case requires a trial, the motion may be dismissed. The litigation then continues, often after significant cost has already been incurred.
A failed motion may also give the other side an early preview of the client’s evidence, strategy, weaknesses, and witnesses.
Costs are a serious consideration. If a party brings or resists a summary judgment motion unreasonably, or acts in bad faith for delay, the court may award substantial indemnity costs under Rule 20.06.
Even where there is no bad faith, the unsuccessful party may face a significant costs award. Before bringing the motion, the client should understand the likely cost of the motion, the likely cost consequences if unsuccessful, and whether the potential benefit justifies the exposure.
A client bringing summary judgment must be prepared for the possibility that the court may decide the case against that client.
This is not merely theoretical. The Court of Appeal has confirmed that a responding party may obtain judgment in appropriate circumstances even if it did not bring a formal cross-motion. The practical point is simple: once a party asks the court to decide that there is no need for trial, the court may agree—but not necessarily in that party’s favour.
A summary judgment motion is only as strong as the evidence supporting it. If documents are missing, key witnesses have not been examined, expert evidence is incomplete, damages are not yet proven, or credibility disputes cannot be fairly resolved on the written record, the motion may be premature.
A premature motion can waste money and weaken the client’s position.
Partial summary judgment means asking the court to decide only part of the case. This can be useful in the right circumstances, but it is now treated cautiously.
The Court of Appeal has warned that partial summary judgment can:
Partial summary judgment should generally be considered only where the issue is clearly separable and deciding it will produce a real practical benefit.
Summary judgment is often worth considering where one or more of the following features are present.
If the key facts are admitted, documented, or unlikely to be affected by witness credibility, summary judgment may be appropriate.
Examples include:
Some cases are document-driven. If the central evidence consists of contracts, emails, invoices, corporate records, bank records, title documents, releases, or insurance documents, summary judgment may be attractive.
By contrast, if the result depends heavily on live testimony, demeanour, competing recollections, or extensive cross-examination, trial may be safer.
A motion may be appropriate where one legal issue can end the case. Examples include:
Where the legal issue is clean and the facts are sufficiently settled, summary judgment can be efficient.
A plaintiff seeking summary judgment should usually be able to prove damages with reasonable certainty.
Summary judgment is more difficult where damages are speculative, future-oriented, dependent on expert evidence, or not yet crystallized. If liability is clear but damages are uncertain, the court may grant partial relief, direct a damages assessment, or refuse summary judgment because the case still requires trial-like adjudication.
Some clients need speed more than process. For example, a business may need to collect a debt, enforce security, remove a litigation cloud, resolve a shareholder dispute, or obtain a declaration affecting commercial operations.
In those cases, summary judgment may be attractive even if the motion carries risk.
Trial may be preferable where the case depends on factors that are difficult to resolve on a paper record.
If the outcome depends on which witness is believed, trial may be the better forum. Although a summary judgment judge can evaluate credibility, there are limits. Where credibility can only be fairly assessed through full oral testimony, trial will often be required.
A case involving numerous witnesses, competing versions of events, and extensive factual disputes may not be suitable for summary judgment. If the motion record becomes as large and complex as a trial record, the efficiency of the motion may disappear.
Where expert evidence is central and materially disputed, summary judgment may be difficult. The court may be reluctant to choose between competing expert opinions without a full trial, especially where cross-examination and factual assumptions are important.
If a proposed motion would decide only a narrow issue and leave the parties with an expensive trial anyway, it may not be proportionate.
This is the key lesson from the Court of Appeal’s caution on partial summary judgment. A motion should not be brought simply because one issue can be won. It should be brought because winning that issue will materially improve or resolve the litigation.
Some cases are better tried. A persuasive witness, sympathetic facts, complex context, or a narrative that requires careful development may be more effective at trial than on affidavit.
A paper record can flatten a case. A trial can sometimes make it come alive.
On summary judgment, both sides must present their best evidence. The court will not assume that better evidence may appear later at trial.
For a plaintiff, this means proving the claim with admissible and persuasive evidence. For a defendant, it means showing why there is a genuine issue requiring trial or why judgment should be granted in the defendant’s favour.
A party should not bring or respond to a Rule 20 motion with incomplete evidence, vague allegations, unsupported denials, or a plan to fill gaps later.
The motion record should usually include:
The goal is to make it easy for the judge to decide the case.
Full summary judgment seeks to end the entire action or defence. This is usually the most attractive form of Rule 20 relief because it offers finality.
Partial summary judgment seeks to decide only one claim, defence, issue, or party’s liability. It may be useful, but it must be approached carefully.
Partial summary judgment may make sense where:
Partial summary judgment may be unwise where:
The modern Court of Appeal approach is practical: partial summary judgment should not be used if it makes the litigation more complicated rather than simpler.
Proportionality is now central to civil procedure in Ontario. The court will consider whether the time, expense, and complexity of the proposed process are justified by the importance and value of the dispute.
For clients, proportionality means asking:
A $150,000 dispute may justify a summary judgment motion but not a three-week trial. A $20 million commercial dispute may justify either process, depending on the evidence and business consequences. The proportionality analysis is always case-specific.
QuestionIf the Answer Is “Yes”Strategic Impact
| Question | If the Answer Is “Yes” | Strategic Impact |
|---|---|---|
| Are the key facts documented or admitted? | Yes | Summary judgment becomes more attractive. |
| Is credibility central? | Yes | Trial may be safer. |
| Can the motion end the entire case? | Yes | Summary judgment may offer real value. |
| Would the motion decide only a narrow issue? | Yes | Consider the Court of Appeal’s caution on partial summary judgment. |
| Are damages clear and provable? | Yes | The plaintiff’s motion becomes stronger. |
| Is the record incomplete? | Yes | The motion may be premature. |
| Could the responding party obtain judgment? | Yes | The moving party must assess downside risk carefully. |
| Will the motion cost nearly as much as trial preparation? | Yes | Summary judgment may not be proportionate. |
| Is delay harming the client? | Yes | Summary judgment may be strategically useful. |
| Are multiple experts and witnesses required? | Yes | Trial may be more appropriate. |
Before deciding whether to proceed by summary judgment or trial, the client should consider the following questions:
Summary judgment is one of the most important tools in Ontario civil litigation. Used properly, it can end a case earlier, reduce expense, create settlement pressure, and avoid the burden of trial.
But it is not suitable for every case. It can be expensive, risky, and counterproductive if brought prematurely or if it only resolves a small part of a larger dispute. The Ontario Court of Appeal’s recent guidance, particularly on partial summary judgment, requires a disciplined and practical approach.
The best candidates for summary judgment are cases where the record is complete, the facts are clear, the legal issue is focused, credibility is not central, and the motion will likely end or substantially simplify the litigation.
The best candidates for trial are cases where live evidence, credibility, factual complexity, expert disputes, or damages issues require a fuller evidentiary process.
The decision is ultimately strategic. The correct question is not simply, “Can we bring summary judgment?” The better question is:
Will a Rule 20 motion likely produce a fair, final, proportionate, and commercially sensible result for this client?
Derrick Fulton's practice focuses on litigation, with a specialization in both corporate and commercial cases. His expertise extends to civil litigation areas such as personal injury, business disputes, construction lien, pharmacy, and condominium law.
