Summary Judgment Instead of Trial

The Saskatchewan King's Bench Rules of Court were re-written effective July 2013, but keep in mind that there will have been amendments from time to time after that. One of the changes with the biggest impact has to be the enhancement of the summary judgment procedure.

Applies to King's Bench Court

This is an article about civil litigation procedure in the Court of King's Bench for Saskatchewan. It does not apply to Small Claims actions. It does not apply to Criminal Law and doesn't have much application to family law matters.

The Old Rules

Prior to the change in our rules, a party in a contested action could ask the court to grant judgment without going to trial, but only in very limited matters. It had to be an action on a debt or "liquidated claim" meaning a loan or other type of debt such as a bill for doing some work or selling something. It didn't apply to many types of actions. The person suing could prepare affidavits setting out their claim in detail and serve it on the other side. All that was required to defeat the application was to show that there was at least an argument for a defence. The judge would not decide if it was a defence that would win ... just that it was reasonable to at least argue it. Because of that, these applications were of very limited value. That meant that most everything contested still had to go through the detailed, slow and expensive court procedure that ended up in a trial. One would need to do document disclosure, examinations for discovery, many needed pre-trial conferences, and then a trial would eventually be held. It could be a trial with everyone testifying in person, or it could be a combination of affidavits and cross-examination on the affidavits. Because of that, the process was still quite expensive and time consuming. Many actions more or less "fizzled out" and never reached their day in court. One side or both ran out of the will to continue or the will to incur more legal costs.

Summary Judgment Today

The court now recognizes that that under the old procedure, many claims never reached their final day in court, or when they did, it was expensive and many years later. In an effort by the courts to improve access to justice and the efficiency of justice, lawyers can now make application to the court for summary judgment. The court recognizes that while it would be ideal to "look under every rock" and hear the most detailed and complete evidence possible through people in person at court, it is better to have a decision based on a thorough (but possibly not perfect) set of evidence than no decision at all. This application is not one to be taken lightly though. The lawyer still needs to prepare just as hard as if the matter was going to trial. Every bit of relevant evidence and documents still needs to be presented to the court, but now we can do so without examinations for discovery or pre-trial conferences. Each side puts in their case by long detailed affidavits from all relevant witnesses. The judge hearing the matter then has the discretion to make a decision on the evidence presented, ask for witnesses to testify on a few matters to add to the evidence, or dismiss the application because the factual disputes are too great for the judge to be equipped to make a decision. In some cases, a person can be cross-examined on their affidavit at a court reporter's office (with the judge later seeing the written transcript) or in by cross-examining the person who swore the affidavit open court.

Facts Cannot Be Too Greatly in Dispute

In most actions, the facts are not that much in dispute. There may be a few incidental matters that are contested. If that is the case, then the action is a good candidate for summary judgment. If there are complicated facts where each party disputes every bit of evidence, the judge may feel it is not possible to make a decision without hearing each witness testify in person and have the benefit of cross examination in court. The judge may feel they cannot make a fair decision unless he or she can listen to and watch each person testifying in person to make judgments on credibility. There can be other reasons as well. In these circumstances, the application for summary judgment will be dismissed and the action will have to proceed the usual way to trial and all the other procedures to get there.

Still Requires Thorough Preparation & Brief of Law

Summary judgment does not mean that the lawyer puts something together quickly to throw at the court and hope it decides the action. It requires as much detailed and careful preparation as would be required for a trial with personal testimony in court. If the lawyer doesn't put in all the evidence, it cannot be patched up afterwards and that side can lose as a result of the inadequate evidence. The summary judgment process can significantly shorten the litigation process and reduce legal costs, but to do the work properly, it still takes very significant time and effort by the lawyer. The Court also requires a Brief of Fact and Law to be submitted by each lawyer.

Fair Results

The Summary Judgment procedure still requires a strong effort from a lawyer and it has its potential flaws. However, it is a very good way to deal with an action where most of the facts are undisputed and the judge can make reasonable inferences on the portion of facts that are in dispute. I have made and argued a number of summary judgment applications. The decisions from them were fair and well reasoned. I don't believe the results would have been any different had it gone through the traditional trial process. They each definitely brought a conclusion to the dispute more quickly and most likely at a lower cost.