Summary Judgment Motions – Will They Replace Trials?

This post was written by Andrea Girones:

Although much has been made of the new summary judgment rules, the Courts appear to be struggling to sort out how best to apply these rules to the area of personal injury.

Injury and accident lawsuits tend to turn on the credibility of the victims as well as the so called “battles of the experts”. While it is easy to imagine a dispute over a contract or between banks be resolved by a motion with only documents and affidavits, it is harder to see how this will work with accident victims.

In a car accident case there are usually no clear cut “legal issues”. Everything revolves around the facts, how severe is the injury and what is the impact on housekeeping and working capacity? Is it a total disability or a partial one? If a partial disability, how does one value that loss? These court findings are rarely black or white but in various shades of grey.

Now that the Supreme Court of Canada has expressed the strong view that trials are no longer the preferred way to resolve legal disputes, will the courts be more willing to deal with personal injury cases in a summary judgment motion? At the end of the day I suspect not because of the fundamental right to cross-examination and its role in helping the court< make findings of disability, and credibility. While mini-trials are still possible, and an option under Rule 20, at the end of the day the overriding concern of the court must be whether SJ motions will reduce the time of lawyers and resources of the court system. It is hard to see how a mini trial can do justice to car accident victims, without spending all the time and energy and costs associated with a regular trial



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