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 – Canada’s largest online legal magazine.)