Put your best foot forwardSummary Judgment Motions

Summary judgments operate like a cost-effective fast-track line to justice. A summary judgment is granted when the court is convinced there is no genuine issue requiring trial. The guiding principle in deciding to grant this procedure is to determine whether it will effect a fair and just resolution.

Although this procedure is encouraged by courts to ease the burden on judicial resources; and favored by individuals for its light(er) burden on the wallets, summary judgments are not suitable in all cases. Summary judgments may be appropriate when a motion record is sufficient to establish the material evidence of the case, for example, where the issue is the interpretation of a contract. In other cases, a written record will not be adequate, for instance, when a party’s credibility is at issue, or where a court is adjudicating the viability of an unwritten contract. In such cases, the courts will opt for the conventional trial to settle the score.

Although the premise behind a just, effective and affordable legal resolution is appealing, there are certain pitfalls to the summary judgment regime. One such drawback arises when a party puts partial evidence before the court so the gaps in its evidence are identified. Thereafter, should the matter proceed to a full trial, the party can benefit from the critique of their evidence identified at the summary judgment stage, and rectify those flaws.

This phenomenon was showcased in Iron Bridge Estates Inc. v Somerset Farms Ltd., 2019 SKQB 164. Here, the plaintiff asserted there was an agreement between it and the defendants to share pro rata the costs associated with constructing a sewage lift station. The defendants denied any such agreement; and asserted that the plaintiff built the station under a misapprehension that there was an agreement. The plaintiff brought an action against the defendants to recover the debt, and filed a builder’s lean on the defendants’ property. Five years passed without any further action undertaken by the plaintiff. The defendants applied to remove the lien, alleging that the plaintiff had now passed the limitation period. In trying to preserve the lien, the plaintiff sought a summary judgment against the defendants. The application judge dismissed the motion, and allowed the defendants’ application to vacate the lien.

The court reasoned that the plaintiff was missing material evidence in its pleading, such as, inter alia, the rationale behind the damages it sought. The court held that such significant evidence should have been pled and provided at the onset. The court denied the request to allow the plaintiff an opportunity to submit the missing materials. The court reasoned that it would be giving the plaintiff an unfair advantage if the court were to identify the weaknesses in a case, and then allow the party to rectify it. The court quoted a principle from Magna Electric Crop. v. Tesco Electric Ltd., 2015 SKQB 35: that a party must not “float trial balloons to see whether their claim could be established and then to get another chance if the matter was directed onto trial.”

The moral of this case is reiterated by this court and many before it: it is incumbent on each party, particularly in summary judgment motions, to put its best foot forward, right from the inception of the action. Thus, litigators should take note that there is no such thing as trial and error in trials, or summary judgments.