Summary Judgment Motions: Proceeding With Diligence

Certain principles on the conduct of summary judgment motions emerge from the court’s recent decision in Meagher v. Hooper-Holmes Canada Limited, 2020 ONSC 4480.

The plaintiffs commenced a medical malpractice claim. The defendants brought a summary judgment motion, which was first scheduled to be heard in January 2019. The plaintiffs sought an adjournment indicating that they needed more time to retain an expert.

The motion was adjourned to May 2019, but on the eve of the motion, the plaintiffs delivered further evidence although not from an expert witness. The motion was rescheduled for April 2020.

Cross-examinations proceeded in January 2020, but the plaintiffs had still not produced an expert report. Due to the COVID-19 pandemic, the motion did not proceed in April 2020.

In a hearing before Justice Myers, the plaintiffs resisted rescheduling the motion based on the need to conduct documentary and oral discovery of the defendants and to attend a mandatory mediation. Justice Myers declined the plaintiff’s request and scheduled the motion for September 2020.

Justice Myers indicated that there is a duty to exercise procedural rights with diligence. Given that two years had passed since the motion was initially scheduled, His Honour held that it was too late to conduct examinations or to ask for further productions.

In addition, Justice Myers stated that there is no right to a civil trial. If the plaintiffs cannot succeed in establishing liability, then there is no procedural basis to require a full trial.

Further, although a court can order a mediation, Justice Myers noted that, where a party claims to have a complete defence to a claim based on the other side’s inability to obtain needed expert evidence, there is no purpose in ordering a mediation.

Lastly, Justice Myers said that the goal of the civil justice system is to provide a fair hearing and outcome to all parties, including defendants. His Honour indicated that a defendant has every bit as much right as a plaintiff to his or her day in court. As with plaintiffs, defendants can suffer costs, delay, and the distress of jeopardy.

In summary, if a plaintiff wants to challenge a defendant’s summary judgment motion, he or she must be diligent, including requesting discoveries and productions in a timely manner and obtaining any necessary expert evidence.