Suzanne E Chiodo (Osgoode Hall Law School)
In my last blog post for the Nathanson Centre, I wrote about the delays in civil justice in Ontario, and my project with Gerard J Kennedy (University of Alberta) and Alyssa S King (Queen’s University) entitled “Fighting the Backlog: How Ontario’s Courts are Using Summary Processes to Address Civil Justice Delays”.
The goal of that project was to assess empirically whether Ontario courts are, and should be, resorting to an increased use of summary processes (and particularly summary judgment) to tackle civil justice delays, and also to assess the impact on self-represented litigants of post-pandemic developments in the use of summary processes. This post provides an update on that project.
In our article shortly to be published in The Canadian Bar Review, I and my co-investigators conduct a quantitative analysis of the use of summary judgment in Ontario over the past decade (2015-2025). To our surprise, instead of the use of summary judgment increasing as a result of civil justice delays post-pandemic, it has plummeted and not recovered. Our article provides some reasons for that decline.
Summary judgment motions allow a court to resolve a civil legal dispute on the basis of written evidence, notably affidavits, cross-examination of affiants, and (if discovery has been completed) discovery transcripts.[1] In 2010, the summary judgment rule (Rule 20 of Ontario’s Rules of Civil Procedure) was liberalized to grant judges additional powers, including the authority to weigh evidence, evaluate credibility, and require viva voce evidence if necessary.[2] The test was also broadened to “no genuine issue requiringa trial”. Four years later, in Hryniak v Mauldin,[3] Justice Karakatsanis for a unanimous Supreme Court of Canada stated that summary judgment should indeed be granted more frequently and that trial should not be viewed as the default mode of dispute resolution,[4] calling for a “culture shift” in the conduct of litigation.[5]
However, while the literature shows that, in the years immediately following Hryniak, more cases werebeing decided by way of summary judgment,[6] this trend did not continue. We analyzed all summary judgment decisions available on Westlaw between 2015 and 2024: five years prior to the pandemic, and five years after its start. In 2020, the number of summary judgment decisions fell by more than half and has largely stayed down. We compare these decision numbers to data provided by the Ministry of the Attorney General (MAG) on summary judgment hearings between 2015 and 2024, which show an even more dramatic drop in motions heard.[7]
Total number of summary judgment motions heard in the Ontario Superior Court, 2014-2024
(source: Ministry of the Attorney General)
Summary judgment hearing numbers to decisions compared 2015-2024 (source: Authors’ data and data supplied by the Ministry of the Attorney General)
| Decisions (Westlaw Data) | Hearings (Working Group data) | |||||
| Total | Toronto | Other | Total | Toronto | Other | |
| 2015 | 332 | 196 | 136 | 1495 | 865 | 630 |
| 2016 | 321 | 150 | 171 | 1341 | 718 | 623 |
| 2017 | 318 | 146 | 172 | 1392 | 709 | 683 |
| 2018 | 349 | 174 | 175 | 1341 | 685 | 656 |
| 2019 | 327 | 166 | 161 | 1142 | 658 | 484 |
| 2020 | 168 | 86 | 82 | 587 | 286 | 301 |
| 2021 | 237 | 124 | 113 | 465 | 152 | 313 |
| 2022 | 198 | 72 | 126 | 374 | 104 | 270 |
| 2023 | 139 | 57 | 82 | 324 | 76 | 248 |
| 2024 | 176 | 69 | 107 | 390 | 70 | 320 |
There are doctrinal and procedural causes for this. Since around 2017, the Court of Appeal for Ontario has restricted the availability of summary judgment in certain circumstances, notably in cases of ‘partial’ summary judgment.[8] From 2015, Toronto, followed by other judicial districts, began requiring parties to appear before a motions scheduling court (known as the Civil Practice Court in Toronto (CPC)) in order to schedule a summary judgment motion. This has led to great difficulty in scheduling summary judgment motions, especially following the restrictive approach of the Court of Appeal.
Ontario’s Civil Rules Review Working Group has proposed a “Summary Track” for certain cases under a $500,000 threshold, which is intended to address some of the issues with summary judgment described here. If it becomes part of the Rules, only its operation over the coming years will determine its effectiveness. Knowing how summary judgment has worked in the past and how it may work in the future is crucial to this ongoing monitoring process, and our work makes a major contribution in this regard.[9]
Our article is rich with other data as well, and interested readers should look out for the article in the next edition of Canadian Bar Review. Future articles arising from this project will involve a qualitative look at summary judgment in Ontario, by way of interviews with judges, lawyers, and other justice system participants; and an article on self-represented litigants’ experiences with summary judgment.
[1] Janet Walker, et al (eds), Civil Litigation Process: Cases and Materials, 9th ed (Toronto: Emond, 2022) at 659 and 679.
[2] Rules of Civil Procedure, RRO 1990, Reg 194, Rule 20 [Rules].
[3] 2014 SCC 7 [Hryniak].
[4] Ibid.
[5] Ibid at paras 27-28; see also paras 23-33.
[6] Brooke MacKenzie, “Effecting a Culture Shift—An Empirical Review of Ontario’s Summary Judgment Reforms” (2017) 54:4 Osgoode Hall LJ 1275.
[7] Data 2014-2023 provided to the Civil Rules Review Working Group by the Ministry of the Attorney General (MAG), on file with the authors and provided to them on July 21, 2025 [Working Group Data]. The data subsequently became available on a members-only page of the website of the Ontario Trial Lawyers Association, online: OTLA <www.otla.com>. The Co-Chairs of the Working Group later received MAG data for 2024, and this data is now publicly available on the website of the Ontario Superior Court of Justice, online: ONSC <www.ontariocourts.ca/scj/about-the-court-2/stats-and-reports/court-data/civil-court-data/>.
[8] Butera v Chown, Cairns LLP, 2017 ONCA 783 [Butera] at para 26, affirming Corchis v KPMG Peat Marwick Thorne, [2002] OJ No 1437 (CA).
[9] Our dataset is available at: https://borealisdata.ca/dataset.xhtml?persistentId=doi:10.5683/SP3/PHKUQO