Motions for summary judgments are typically welcomed because if successful, they help to end the litigation before more time and money is invested in the litigation. However, it a party waits too long to bring a motion for summary judgment, there is a risk that the court will not entertain the motion, as what occurred in this insurance coverage case where the Plaintiff sued the insurance company over some disability coverage that the insurer repeatedly denied based on the medical evidence available even before the lawsuit started (and arguably got perceptively stronger for the defendant in the ensuing years following the commencement of the lawsuit).
As the court found, the insurance company was in a position to bring their motion as early as 2015, but waited until mid-2021 to bring the motion with a return date in February 2022, when the plaintiff’s trial was slated to be held in September 2022. The court relied heavily on the Supreme Court of Canada’s pronouncement in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87, which promoted the use of summary judgment motions, but also provided the following caution:
“While summary judgment motions can save time and resources, like most pre-trial procedures, they can also slow down the proceedings if used inappropriately. While judges can and should play a role in controlling such risks, counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice. Lawyers should consider their client’s limited means and the nature of their case and fashion proportionate means to achieve a fair and just result.”
In this case, with the long unjustifiable delay in bringing the motion, the court declined to hear the defendant’s motion for summary judgment. Although the court acknowledged that Covid-19 shutdowns may have contributed to some of the delay, it was paltry compared to the amount of non-Covid related delay at the feet of the insurance company. Interestingly, the court also rejected the insurance company’s excuse that it was justified in waiting until after the outcome of the mediation held in August 2020 before bringing their summary judgment motion: to this end, the court said:
“Based on the facts of this case, holding out for the completion of Mediation is not a reasonable explanation for delaying bringing the motion for summary judgment. With the position that had been taken by …(the insurer)… since 2015, Mediation was more likely than not, a mere formality. (The insurer)… has not departed from its position that the denial …. was proper and grounded in the evidence.”
Doef v Hockey Canada et al., 2022 ONSC 1411
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1411/2022onsc1411.html