Note: The rules and law may have changed since this article was first published. It is provided for archival purposes but you should consult with your lawyer for the current state of the law
The adoption of the Simplified Procedure in Saskatchewan has significantly altered litigation practice for claims of $50,000.00 or less. Along with dispensing with traditional litigation proceedings such as examinations for discovery, one of the most important changes is the expanded availability of summary judgment. Whereas historically summary judgment was available only for plaintiffs with claims for a debt or liquidated demand, the Simplified Procedure goes beyond this, making summary judgment available for any action brought under Part Forty.
While the rationale behind this expanded role for summary judgment was to reduce legal costs in claims for $50,000.00 or less, the practitioner should be aware of the circumstances when the Court will grant or refuse summary judgment. Bringing an application for summary judgment only to have it dismissed and then proceed to summary trial may, in the end, prove to be a needlessly expensive exercise for your client. Care should be taken in deciding when to bring a summary judgment application before the Court, so that the Simplified Procedure may achieve its purpose of reducing costs.
II. Summary Judgment not only for Plaintiff
While this article is presented from the point of view of plaintiff’s counsel, it is important for defendant’s counsel to bear in mind that summary judgment is available for any party under Part Forty (See for example: Nowosad v. Hanson,  S.J. No. 327 (Sask. Q.B.) and Foltz v. Southwest Credit Union Ltd.,  S.J. No. 733 (Sask. Q.B.)).
In the context of the purpose of the Simplified Procedure this makes sense. With access to summary judgment being expanded to any action brought under Part Forty, it is consistent that a defendant, as well as a plaintiff, should have the means to bring an action to a swift end. While summary judgment applications by defendants are not as common as plaintiffs’ applications, they are an option for defendant’s counsel to keep in mind. Bringing a summary judgment application may be a viable option, for example, when the plaintiff’s pleadings disclose a reasonable cause of action, but there is little evidentiary support for the claim, or, when a plaintiff has commenced a frivolous action.
III. Deciding Whether to Make the Application
A. Initial Considerations
In assessing whether or not to bring a summary judgment application, the first step should be an analysis of the pleadings and the evidence that you believe both sides can bring to the application.
With respect to the pleadings, certain causes of action are generally better suited for summary judgment applications. For example, an action to collect a debt may be straight-forward. The plaintiff pleads the debt and the defendant submits a defence that simply denies incurring the debt. So long as there is the evidence to prove that the defendant did incur the debt, this action would be a good candidate for summary judgment.
However, even when the cause of action is relatively straight-forward, the feasibility of bringing a summary judgment application will depend on the defence plead. If, for example, the defendant pleads a more factually complex defence to the debt, such as verbal misrepresentations by the plaintiff to the defendant, this may dissuade one from bringing a summary judgment application.
Similarly, wrongful dismissal actions also can be good candidates for summary judgment, but again, the defence(s) raised will be relevant in making the decision how to proceed.
In addition to the pleadings, a review should be made of the evidence available. While at this point plaintiff’s counsel should be aware of the evidence the plaintiff can bring, there are ways to ascertain the evidence the defendant may have.
One source is the affidavit of documents and witnesses. From this counsel may learn the documents the defendant may rely on and the witnesses that may be called. Not only is it practical to bring a summary judgment application after receipt and review of the affidavit of documents and witnesses, there is case authority that holds that a plaintiff’s application for summary judgment is premature if made before discovery of documents and witnesses (see: Eichelberg v. Bucsis,  S.J. No. 616 (Sask. Q.B.)).
Another source to learn the potential evidence the defendant may bring is at the mandatory mediation session (where applicable). While the purpose of the mandatory mediation session is to try to resolve the action, in many cases this does not happen, and the mediation session can become an informal examination for discovery.
B. Preparing Your Materials
At this stage counsel should have an idea as to whether or not an application for summary judgment is feasible under the circumstances. If the decision is to proceed with the application, there are a few things to bear in mind when preparing your affidavit material.
Most importantly, it must be remembered that the summary judgment application is an application for final judgment. As such, the Court requires the parties to bring all their evidence to the application, the same as if the matter was proceeding to a summary trial (see: Best v. Hanna,  S.J. No. 179 (Sask. Q.B.)).
Related to this requirement for the parties to bring their “best foot forward” is Rule 478. This Rule allows for evidence based on information and belief to be admitted on a summary judgment application, however, an adverse inference may be drawn if the individual with personal knowledge does not provide an affidavit. It is prudent, therefore, to submit on the summary judgment application affidavit evidence from all the witnesses you need to prove your client’s case, just as if the parties were proceeding to a trial (see: Regier v. Denis (c.o.b. Silhouette Seeds-Semences),  S.J. No. 531 (Sask. Q.B.)).
C. Second Thoughts
Making the application for summary judgment does not necessarily mean that the application should actually be heard. While the pleadings, discovery of documents and the mandatory mediation session may lead counsel to the conclusion that a summary judgment application is feasible, matters may change once the defendant’s affidavit material is received. What appeared to be a straight-forward pleading in the statement of defence may be more factually complex when evidence is presented, the discovery of documents can only go so far and at the mediation session the issues may not have been discussed in sufficient detail.
Let us say, for example, a plaintiff is claiming in debt for goods sold and delivered. The defendant has plead that the goods were not actually received. While plaintiff’s counsel believed when bringing the summary judgment application that sufficient evidence could be brought to prove the debt by way of signed documents, when the defendant submits affidavit material, it turns out that the defendant swears that the signatures were not the defendant’s. What initially appeared clear cut has now been muddied considerably.
Therefore, upon receipt of the defendant’s evidence, it may be appropriate to re-visit the issue of whether the matter should proceed to summary judgment. (Note: This, of course, is based on the assumption that the plaintiff has already put forth their best evidence and the plaintiff’s case is one that could succeed at trial. See, for example, Nowosad v. Hanson, supra, where the plaintiff made an application for summary judgment, the defendants also applied for summary judgment, whereupon the plaintiff changed his mind and sought summary trial at the hearing, only to have the Court grant summary judgment for the defendants dismissing the plaintiff’s claim.)
It is at this point that the test for summary judgment becomes particularly relevant. In essence, Rule 488 provides that the Court shall grant summary judgment unless the Judge is unable to decide the issues without cross-examination, or it would be otherwise unjust to decide the issues on a summary judgment application. Thus, unless either of these two circumstances apply, the Rule mandates summary judgment (see: Canada Trust Co. v. Osicki,  S.J. No. 260 (Sask. Q.B.)).
However, the wording of Rule 488 is rather broad and subjective. When cross-examination is necessary and whether it is unjust to grant summary judgment are issues that are difficult to assess, particularly for junior counsel. Mr. Justice Laing provided some guidance in Caudle v. Louisville Sales & Service Inc.,  S.J. No. 873 (Sask. Q.B.) at 2:
It follows from the foregoing that the test is not whether there is contradictory evidence in the affidavit material filed, but rather, whether despite the contradictory evidence, the issue(s) can be decided in the absence of cross-examination and it would not otherwise be unjust to do so. One way that contradictory evidence can be decided in the absence of cross-examination, is where for the purposes of the application the Court accepts the defendant’s evidence wherever it conflicts with that of the plaintiff and still concludes the plaintiff is entitled to judgment. The analogy is the law related to the striking of a pleading for disclosing no reasonable cause of action or defence (Rule 173(a)) where the Court must assume any allegation of fact to be true. If the Court can assume the defendant’s evidence is true and still grant summary judgment, there is no genuine need for a trial.
Based on the foregoing, cross-examination is likely necessary where there is a conflict on a material fact(s) in the affidavits submitted by the parties. The resolution of this conflict may depend on an assessment of credibility, in which case a trial would be necessary (See: Scarlett v. Regina Metal Industries Ltd.,  S.J. No. 713 (Sask. Q.B.) affirmed  S.J. No. 426 (Sask. C.A.)).
The Chambers Judge may also feel that cross-examination is necessary to provide further information than that set out in the affidavits, thereby assisting the Court in resolving any material conflicts in the affidavit evidence (See: Grahame v. Group Medical Services,  S.J. No. 38 (Sask. Q.B.)).
The Court may grant summary judgment even when there is a material conflict between the plaintiff and defendant’s evidence. This result is unlikely though and will probably occur only in exceptional cases. For example, in Farm Credit Corp. v. Marshall,  S.J. No. 275 (Sask. Q.B.), there was a conflict on a material fact, however, the defendant’s own evidence on this point was contradictory between his affidavit and supplementary affidavit. Mr. Justice Sandomirsky was of view that allowing cross-examination would only exacerbate the contradictions between the defendant’s affidavits.
One should also bear in mind the decision of Mr. Justice Ball in 601645 Saskatchewan Ltd. v. Summit Gourmet Foods (1998) Ltd.,  S.J. No. 663 (Sask. Q.B.) where he stated that cross-examination is not necessary where the affidavit evidence does not leave sufficient doubt about the issues in dispute and cross-examination would be, in essence, a “fishing expedition”.
As for when it may be unjust to grant summary judgment, there are few reported decisions on this point. One an example might be a situation where a plaintiff represented by legal counsel brings a summary judgment application against an unrepresented defendant.
In Florizone v. Balfour,  S.J. No. 168 (Sask. Q.B.), the plaintiff’s application for summary judgment was directed to summary trial on the basis that it would be unjust to decided the matter on the motion. It was unjust because the defendant had filed deficient materials. Although the defendant’s materials did not reveal why judgment ought not be granted or establish a defence and the defendant was represented by counsel, the Court was not prepared to assume that the defendant did not have evidence to bring before the Court.
While there may have been unique circumstances in this case not reflected in the decision, this case is hard to reconcile with other decisions requiring all parties to bring their full case before the Court on a summary judgment application (See for example: Best v. Hanna, supra). The wording of Rule 488 and other decisions interpreting this Rule suggest that the Court should assume that the parties have brought forth their best evidence and if the defendant’s evidence does not show a genuine need for a trial, summary judgment shall be granted.
Therefore, should there be a conflict on a material fact(s) in the affidavit evidence presented on a summary judgment application, it may be prudent at this point for counsel to agree, preferably prior to the return date for the motion, to refer the matter to a summary trial. (Note: There also is the possibility of counsel agreeing to disposing the matter by way of summary judgment. See: Warren v. 622718 Saskatchewan Ltd. (c.o.b. Palmx Route Accounting),  S.J. No. 525 (Sask. Q.B.)).
To proceed with a summary judgment application in the face of significant evidentiary conflicts may do your client a disservice. Not only will the application likely be dismissed by the Court and referred to summary trial, but the cost in proceeding in this manner may negate the cost advantages of the Simplified Procedure. Essentially, your client will be paying you to prepare for final judgment twice. Bearing in mind the time and cost inherent in preparing for a major Court application and then a summary trial, this may make your client’s lawsuit cost prohibitive.
Therefore, it is important for counsel to carefully scrutinize their client’s evidence before making an application for summary judgment. Even once the application has been made, it may be prudent to re-visit your client’s chances of success on the application and decide instead to refer the matter to a summary trial.