Faced with public outcry over the delay and costs inherent in the system, commercial clients' demands for more value from their lawyers, and a concern that too many dubious or ill-motivated cases are clogging the dockets for too long, a new paradigm for summary judgment has evolved in a growing number of Canadian jurisdictions, including Ontario, British Columbia, Alberta, Quebec and Nova Scotia.
What makes this all particularly useful is the notion of partial summary judgment common in virtually all jurisdictions. In other words, judges can award or dismiss judgment on only some of the claims made or against only one or more of the parties. As well, most Canadian jurisdictions empower or require judges to make directions as to what, if anything, remains of a case following disposition of a summary judgment motion.
"Even if you lose, you win," says Crawford Smith. He points to the directions given in Harris v. Leikin Group by Ontario Superior Court Justice David Brown. "Only one of 10 defendants successfully had the case against them dismissed, but everybody agreed that the result of the motion and the directions that followed from the arguments meant we were now looking at a one-week trial instead of a four- to six-week trial."
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