Law · Legal Information · Justice
 

Summary Judgment

A court order dismissing a claim summarily, upon application, and based on the allegation that there is no claim or defence with a reasonable prospect of success.

A court order (judgment) dismissing a claim summarily, without a full hearing on the evidence, upon application, and based on the allegation that there is no claim or defence with a reasonable prospect of success.

This is an extraordinary procedure and will be dismissed unless it is clear, based on admissions within the pleadings, or clear incontrovertible evidence in an otherwise simple case.

Either party may apply to the Court suggesting that the other's claim is without foundation and swearing, on an affidavit, that they can think of no fact that might form a basis of the claim or a defence to the claim, as the case might be, except for the amount.

The Court has wide powers when deciding upon such applications.

In Tupperware Canada v 1196815 Ont. Ltd., 2008 OJ 532 and also published at 2008 CANLII 5118, the plaintiffs felt they had a solid summary judgment case as they had in hand a promissory note.

The defendants told the court it wasn't all that simple; they alleged set-off against the promissory note and issues arising from the Tupperware franchise agreement.

That latter argument was enough to have Tupperware's application for summary judgment dismissed. It was a "triable issue" said the judge adding:

"These issues cannot be determined on a summary judgment motion.  The motion is therefore dismissed."

This form of litigation attack is made by way of affidavit and is often merely a tactic by a wealthy litigant to harass the other, as it must be met, or to insert into the Court file material prejudicial to the other litigant and not necessarily lost on the eventual trial judge, who may wish to peruse the Court file before the hearing.

It differs from a summary trial, the latter being a trial on the merits of the case but the evidence being limited to affidavits as opposed to under oath, oral evidence.


Are we missing anything? If you think there is a term that should be included, please send us the suggestion

  • Dictionary
  • Resources
  • LawMag

Latest LagMag headlines:

H1N1 Law - Swine Law for a Swine Flu

In a state of public health law anarchy, professional hockey players receive a killer flu vaccine while infants and pregnant women wait.

The Death of the Common Law: Expiry date, 2100

Just about now, but for the economic might of the United States of America, the last funeral bell tolls of the common law would be fading.

Gretzky Law

The recent Phoenix Coyotes debacle, in which he left behind his job, is not the only time Wayne Gretzky has had to leave from the side exit of a courtroom.


Read earlier headlines »
Subscribe to stay in touch »

Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.

top