A recent decision of the Ontario Superior Court of Justice (the “Court”) provides an important reminder for parties responding to a summary judgment motion.
In Lukey Capital Corp v. 1000110300 Ontario Inc. et al, 2024 ONSC 6589 (“Lukey Capital”), the plaintiff brought a motion for summary judgment before the Court for the payment of a loan it made to the Defendants under a promissory note. Upon reviewing the evidence before it, the Court granted the sought relief.
In doing so, the Court underscored a key principle for parties responding to a summary judgment motion to keep in mind.
The Defendants made several arguments that there were genuine issues in the proceeding which required a trial. Among these arguments was a submission that other evidence may be uncovered through further examinations and productions which would support their defence. The Court, echoing well-settled principles regarding evidence on summary judgment motions that were set out in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, held:
[23] …The defendants could not point to or suggest to the court what further evidence might be available. The defendants had an opportunity to cross-examine the plaintiff’s representative. They did not summons any additional witnesses to be examined on a pending motion. The defendants are required to put their best foot forward and to lead trump or risk losing when responding to a summary judgment motion. Speculation as to evidence that might be available is not sufficient. [emphasis added]
Lukey Capital emphasizes the importance of ensuring the best possible record is put forth on a motion for summary judgment. In addition to Lukey Capital, the Ontario Court of Appeal’s recent decision in 1000425140 Ontario Inc. v. 1000176653 Ontario Inc., 2024 ONCA 610 suggests that responding parties in these motions are particularly at risk for failing to meet this obligation. Responding parties must heed the learned Justice Henry’s guidance from the seminal decision of Pizza Pizza Ltd. v. Gillespie, 1990 CanLII 4023 (ON SC):
It is not sufficient for the responding party to say that more and better evidence will (or may) be available at trial. The occasion is now. The respondent must set out specific facts and coherent evidence organized to show that there is a genuine issue for trial.
The lawyers at Gilbertson Davis LLP have experience with contract litigation, summary judgment and commercial disputes. Please contact us for an initial consultation.
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