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.