Court Procedure: Summary Judgments, Part 2

How can I get "summary judgment"?


In our previous post, we reviewed what summary judgment Motions are, why they are available, and what some of the outcomes may be if you bring one.  In this post, our intern, Xinya Wang, reviews the test for summary judgment and discusses oral evidence.

The Test for Summary Judgment

First, without using the new fact-finding powers and based only on the evidence available at the time, the judge should determine if there is a genuine issue requiring a trial.

Second, If the answer to (1) is yes, then the judge should use the new fact-finding powers to determine if the need for a trial can be avoided. To do so, the judge can weigh evidence, evaluate credibility, draw inferences, and or receive oral evidence. These powers are to be used at the judge’s discretion, so long as it is not against the interests of justice, will lead to a fair and just result, and will serve the goals of timeliness, affordability, and proportionality with respect to the entire litigation process.

Proportionality is an important criterion for the test for a summary judgment. By considering proportionality, the judge balances the relative efficiency between a summary judgment versus a regular trial. This may include, for example, considering the cost and speed of both procedures. The judge may also assess the quality or quantity of evidence that would be available at trial, versus the evidence that is available on the motion.

The motion is successful if the answer is either (1) there is no genuine issue requiring a trial, or (2) the need for a trial can be avoided by using the new fact-finding powers.

What is oral evidence, and when might it to be given?

The evidence on a Motion for summary judgment is done by Affidavit.  This means your testimony will be written down; you do not testify on a witness stand.  However, the judge may request oral evidence to clarify or address the credibility of any existing evidence.

You can also ask to give oral evidence.  If either party hopes to lead oral evidence, they should be prepared to demonstrate to the judge why the oral evidence will help the court in weighing evidence, assessing credibility, or drawing inferences. Furthermore, the party should also be able to provide a description (or a “will-say” statement) of the proposed oral evidence; this will assist the judge with setting the scope of the oral evidence to be given.

However, situations requiring oral evidence will likely be limited. Oral evidence should be called only when it will permit a fair and just adjudication, is a proportionate course of action, and/or will avoid the need for a long and complex trial.