In Basaraba v Bridal Image Inc., 2021 ONSC 8038, the defendants brought a motion for summary judgment to have a “slip and fall” case dismissed. The defendants lost the motion. In writing his decision, Justice Dunphy provided guidance on best practices for motions, as set out below:
- To convince a court to hear a partial summary judgment motion, the party must show:
(i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;
(ii) Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;
(iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.
- Parties should provide a comprehensive motion record that is easy to navigate.
- The factum and the motion record should be hyperlinked.
- The factum should walk the judge through the relevant evidence leading to the desired outcome. The factum should use hyperlinks to the evidence and if possible a reference to the relevant Caselines page number.
- Upload documents to Caselines with thought. Hyperlinks and, in appropriate cases, separate uploading of individual tabs or exhibits make the task of navigating large volumes of documents feasible.
- Any time a question is brought to a judge for summary judgment, the parties should fully appreciate that the question must be ripe for definitive resolution.
- Clear and concise materials give the judge confidence that they can render a decision on the merits that is fair and reasonable.
- “I should note in passing that the moving party defendants certainly lacked the courage of their convictions in the simplicity and obvious nature of their case: they each filed lengthy motion records packed with hundreds of pages of affidavits and transcripts…The record before me leaves me singularly ill-equipped to arrive at a reasoned view of the application of the duty of care here with the confidence necessary to enter a judgment one way or the other”. (paras 13 and 21)
Given the importance of hyperlinking and lack of uptake, we need to consider whether there is a way to nudge litigants towards using hyperlinks (e.g. through more technologically sophisticated court forms).
(This article was originally posted on Slaw.ca – Canada’s largest online legal magazine.)
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