Introduction

What prompted me to write this piece on the evolution of summary judgment in Ontario was the recent Court of Appeal decision in Bello v. Hamilton (City), 2025 ONCA 758^[1]. The case arose after the motion judge granted summary judgment dismissing a cyclist’s claim against the City on the basis of the “untravelled portion of the highway” defence under s.44(8) of the Municipal Act^[2]. The judge concluded that the area where the incident occurred was not intended for travel and that foreseeability was irrelevant to the statutory analysis. The Court of Appeal disagreed, holding that the motion judge had applied the wrong legal test and had failed to properly evaluate whether the defence was available on the record. The appellate court emphasized that the summary judgment process could not fairly resolve the fact-driven statutory question and restored the action to proceed to trial.

Reading this decision, and its careful attention to the limits of Rule 20 where statutory interpretation intersects with factual uncertainty, reminded me of just how dramatically, and how unevenly, the law of summary judgment has evolved over the last four decades. 

From “No Genuine Issue for Trial” to the Culture Shift

When I started out on Bay Street at a defence firm as a summer student in the late 1980s, summary judgment in Ontario was a narrow tool. Rule 20 existed, but the prevailing wisdom was that if there was anything resembling a factual dispute, the motion was doomed. The test was framed in terms of whether there was a “genuine issue for trial”, and judges were wary of deciding anything that smelled like a credibility contest on paper.

The jurisprudence of that period reflects a cautious, almost defensive view of summary judgment. Motions were granted, but only when the record was clean, documentary, and overwhelmingly one-sided. Over the next three decades, a combination of case law and rule amendments shifted that outlook dramatically, culminating in the Supreme Court of Canada’s access-to-justice “culture shift” in Hryniak v. Mauldin, [2014] 1 SCR 87^[3], and then a quieter retrenchment in cases warning against over-use, especially for partial summary judgment.

This is the arc of that evolution.

Pizza Pizza: The “Hard Look” and “Best Foot Forward”

One of the foundational modern cases on summary judgment in Ontario is Pizza Pizza Ltd. v. Gillespie, 1990 CanLII 4023 (ON SC)^[4], decided in 1990. It arose out of a dispute between a franchisor (Pizza Pizza) and a former franchisee over a non-competition covenant and allegations of breach of fiduciary duty. The franchisor moved for summary judgment to enforce the covenant and restrain the franchisee’s competing business. The franchisee argued there were factual and credibility issues that required a trial.

Henry J. used the case to set out a comprehensive approach to summary judgment. He stressed that the moving party must put its “best foot forward” on the motion, that the judge should take a “hard look” at the record, and that the question is whether there is a genuine issue that truly requires the procedures of a full trial. I recall that the decision became a touchstone not only in Ontario, but in other jurisdictions grappling with the boundary between motions and trials under summary judgment rules.

Irving Ungerman: No Genuine Issue for Trial, Not “No Issue at All”

The Ontario Court of Appeal refined and consolidated the test in Irving Ungerman Ltd. v. Galanis, 1991 CanLII 7275 (ON CA)^[5], a 1991 decision that became the leading authority on Rule 20 for years. The case involved a dispute over the sale of a property where the tenant had a right of first refusal. The tenant claimed to have exercised that right and moved for summary judgment to enforce it, while the purchaser and vendor resisted, saying there were factual issues about whether the right had been properly exercised.

The Court of Appeal confirmed that the test is whether there is a “genuine issue for trial”, not whether the responding party has any conceivable argument. It emphasised that motions judges have to assess the evidence, not just the pleadings, and that a party cannot simply sit back and rely on unproven allegations. At the same time, the Court warned that summary judgment is not appropriate where material facts depend on credibility assessments or contested oral evidence that cannot fairly be resolved on affidavits alone.

Together, Pizza Pizza and Ungerman set the tone for the 1990s. Summary judgment was available, but the threshold was high and the procedure was treated as the exception, not the norm.

The Supreme Court Enters the Picture: Guarantee and Crystalline

In Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 SCR 423^[6], the Supreme Court of Canada considered a dispute over indemnities and guarantees in the context of a complex financial transaction. The surety sought summary judgment, arguing the plain wording of the guarantees entitled it to payment. The respondents said there were defences and factual issues requiring a full trial.

The Supreme Court effectively endorsed the Ontario approach reflected in Ungerman, emphasising that the motion judge’s task is to determine, based on the evidence filed, whether there is a genuine issue for trial. If the responding party cannot show a realistic defence supported by evidence, summary judgment is appropriate. But if the resolution of the dispute turns on credibility or contested factual inferences that cannot reliably be drawn from the paper record, the matter must go to trial. The decision took the Ontario “no genuine issue for trial” framework and gave it national weight.

In Crystalline Investments Ltd. v. Domgroup Ltd., 2004 SCC 3 (CanLII), [2004] 1 SCR 60^[7], the Supreme Court again addressed summary judgment, this time in the context of a dispute over a commercial lease and an alleged breach of a right of first refusal. The landlord and tenant disagreed about whether a series of transactions triggered the tenant’s contractual rights. The tenant sought summary judgment based on the wording of the lease and the surrounding documents. The Court upheld the use of summary judgment to resolve disputes that turn predominantly on documentary evidence and legal interpretation, reaffirming that when the material facts are largely undisputed and the issue is one of contract construction, a trial is unnecessary. The decision reinforced the idea that summary judgment is suitable when the record allows for a confident determination without viva voce evidence.

By the mid-2000s, the Supreme Court had accepted that well-framed summary judgment motions are legitimate vehicles for deciding real disputes, not mere screening tools, but the prevailing culture undoubtedly was still that trials were the gold standard.

The 2010 Amendments to Rule 20 and Combined Air’s “Full Appreciation” Test

In 2010, Ontario significantly amended Rule 20. The changes did two critical things:

1. They confirmed that a judge on a summary judgment motion could weigh evidence, evaluate credibility, and draw reasonable inferences, and
2. They allowed the judge to order a “mini-trial” on discrete issues, hearing limited oral evidence to resolve narrow factual disputes that stood in the way of judgment.

These powers were codified in Rule 20.04(2.1)–(2.2)^[8], and were meant to expand summary judgment beyond a purely documentary exercise. The question became how far should motion judges now go in finding facts and deciding cases on the paper record plus limited oral evidence?

The Ontario Court of Appeal addressed that question head-on in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (CanLII)^[9], a 2011 decision dealing with five appeals heard together. The cases ranged from commercial contract disputes to professional negligence, each decided on a summary judgment motion under the newly amended Rule 20. In some, summary judgment had been granted. In others, it had been refused.

The Court of Appeal introduced the now-famous “full appreciation” test. Summary judgment should only be granted where the motion judge can achieve the same full appreciation of the evidence and issues as would be gained at trial, using the enhanced fact-finding powers sparingly. Where the record is complex, credibility-laden, or will benefit significantly from the trial process, the Court said the matter should go to trial despite the new powers. Although Combined Air recognized that the amendments represented “a new departure and a fresh approach,” in practice it preserved a fairly narrow gate for summary judgment in many contested cases.

For several years after Combined Air, the message to litigators was mixed. The rules said “more summary judgment,” but I think the Court of Appeal’s prudence made many judges reluctant to fully embrace it, especially where the record was long or credibility was in play.

Hryniak v. Mauldin: The Culture Shift

Hryniak v. Mauldin, [2014] 1 SCR 87^[10] arose from an alleged investment fraud involving significant sums of money transferred into what was supposed to be a sophisticated foreign investment vehicle. The plaintiffs claimed they were defrauded and sued, among others, Robert Hryniak. Rather than proceed to a standard trial, the plaintiffs moved for summary judgment. One set of plaintiffs succeeded. Another did not. A series of appeals followed, including the Combined Air decision in the Ontario Court of Appeal, before both the Ontario and companion cases reached the Supreme Court.

The Supreme Court used Hryniak as a vehicle to re-cast summary judgment in light of the access-to-justice crisis. Trials were becoming too slow and expensive for ordinary litigants, and a culture that treated the “full trial” as the only acceptable path to justice was no longer sustainable.

In Hryniak, the Court reframed the test for summary judgment while affirming the 2010 rule amendments. The analysis now proceeds in two stages:

1. First, the motion judge asks whether the record, taken as a whole, shows that there is no genuine issue requiring a trial. In other words, whether the dispute can be fully and fairly resolved on the motion record alone.
2. If there is a genuine issue, the judge then considers whether it can nevertheless be resolved using the new fact-finding powers of weighing evidence, evaluating credibility on a paper record, drawing inferences, and, where necessary, convening a focused mini-trial on a narrow set of live issues.

The Supreme Court rejected the restrictive “full appreciation” language from Combined Air to the extent it discouraged robust use of these tools. Instead, it held that summary judgment should be interpreted broadly, consistent with a “culture shift” in which proportionate, timely, and affordable adjudication is the norm, not the exception.

After Hryniak, the expectation was clear. Counsel were to treat summary judgment as a central part of the litigation toolbox, not an exotic remedy.

After Hryniak: How the Ontario Court of Appeal Re-Balanced the Tool

In Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 (CanLII)^[11], the Court of Appeal considered a complex series of real estate transactions where investors alleged they had been misled and sought to enforce or unwind certain agreements. The motion judge had granted partial summary judgment on some issues while leaving others for trial, in a fact pattern that was dense, credibility-laden, and intertwined.

On appeal, the Court cautioned against using partial summary judgment in cases where the issues are deeply interwoven and credibility lies at the heart of the dispute. It stressed the risk of inconsistent findings between the motion and the eventual trial, and the inefficiency that can arise when the Court is forced to revisit overlapping facts and legal issues in multiple stages. I don’t think that Baywood rolled back Hryniak, but it did narrow the circumstances where partial summary judgment is appropriate, particularly in complex commercial cases involving allegations of dishonesty.

Butera v. Chown, Cairns LLP, 2017 ONCA 783^[12]involved a family dispute over funds allegedly transferred to purchase real property, where one party sued a law firm for alleged negligence and sought partial summary judgment on certain issues while leaving the rest of the claim to be tried. The motion judge granted partial summary judgment in favour of one of the parties, resolving part of the dispute. The Court of Appeal set aside the partial summary judgment and sent the matter to trial. It underscored that partial summary judgment should be granted only in the rarest circumstances, where the issue can be cleaved off cleanly from the rest of the case, and where doing so will genuinely promote efficiency and avoid inconsistent findings. Where the facts and legal issues are interrelated, the Court warned, partial summary judgment can increase cost and delay rather than reduce it.

The Ongoing Role of Pizza Pizza and Ungerman

Even after Hryniak, I don’t see that the basic principles articulated in Pizza Pizza and Ungerman have disappeared. These cases still stand for the propositions that:

• The moving party must put its best foot forward on the motion;
• The judge decides based on the evidence on the record, not unproven pleadings; and
• Where a material issue turns on contested credibility, summary judgment will rarely be appropriate.

I still see Ungerman as the classic statement that the task is to determine whether there is a genuine issue for trial, not to indulge speculative defences unsupported by evidence. In that sense, Hryniak added tools and reframed the culture, but it did not abandon the core logic that summary judgment is about evidence, not rhetoric.

Where Summary Judgment Stands Now

Summary judgment in Ontario has travelled a long road from genuine exceptionalism to cautious normalization. Before the 2010 amendments, cases like Ungerman and Pizza Pizza made it clear that summary judgment was available, but judges treated it as an extraordinary remedy reserved for the most straightforward disputes.

The 2010 reforms were meant to change that by giving courts real fact-finding powers. But Combined Air quickly narrowed the field again through the “full appreciation” test, signalling that summary judgment remained inappropriate whenever the record was extensive or credibility-sensitive. For several years, the bar found itself in an awkward middle ground. The Rules urged more summary adjudication, but appellate guidance kept judges wary of overusing it.

Hryniak finally shifted the presumption. The Supreme Court recast summary judgment as a central pathway to proportionate justice, urging judges to use the enhanced Rule 20 powers robustly when fairness permitted. Yet even after Hryniak, the pendulum settled somewhere short of unqualified enthusiasm. Decisions such as Baywood and Butera reminded the bar that partial summary judgment, in particular, risks fragmented litigation and inconsistent findings.

This disciplined approach persists, as illustrated by 2025’s Bello. There, the Court of Appeal overturned a dismissal under the “untravelled portion of the highway” defence in s. 44(8) of the Municipal Act, finding that the motion judge had applied the wrong legal test and that the statutory and factual issues could not be resolved fairly on a paper record. Bello reinforces a modern but restrained message. Summary judgment is powerful and encouraged, but it cannot replace a trial where key facts remain unsettled.

For litigators, summary judgment is no longer a radical manoeuvre, and in the right case it is expected. Still, motions built on contested credibility, immature records, or attempts to carve up sprawling disputes remain risky. The best candidates continue to be those with documentary foundations and clear, contained issues capable of genuine final resolution under Rule 20.

For mediators and counsel, this evolution has direct consequences. A well-grounded summary judgment threat can be a valuable negotiation lever. A poorly conceived one, especially a partial motion in a factually tangled case, can entrench positions, drain resources, and delay resolution.

Looking Ahead: Forward Momentum, Traditional Discipline

The arc from Ungerman to Hryniak reflects a system caught between its traditional reverence for the full trial and the modern need for proportionate, affordable justice. The Rules have opened the door to more summary adjudication, and the Supreme Court has encouraged a cultural shift, but the Court of Appeal continues to stress discipline. As Bello demonstrates, courts remain alert to the limits of paper-based adjudication, particularly where statutes and facts intersect in complex ways.

For those like me who practised through the earlier era, summary judgment today is undeniably more muscular and more flexible, but also more dangerous if deployed carelessly. Used well, it achieves justice faster and at lower cost. Misused, it creates appellate risk and undermines efficiency.

The law is not returning to the 1980s, nor should it. But the core message endures to build a proper record, know when the case is truly fit for paper determination, and respect the line beyond which only a trial will do.

Where Summary Judgment Motions Could Be Headed Under Phase 2 Civil Rules Reform

The Phase 2 Consultation Paper^[13] released by the Civil Rules Review Working Group proposes a wholesale rethinking of civil procedure in Ontario, one that would inevitably reshape summary judgment practice. I have been blogging about those proposed reforms all year^[14]. The vision is to front-load evidence and shift adjudication earlier in the life of a case. Under the proposed “up-front evidence model,” parties would exchange sworn witness statements and key documents shortly after pleadings close, effectively creating a trial-ready record far earlier and reducing reliance on traditional oral discovery.

In some versions of the reform, Rule 20 itself would be functionally replaced by a “Paper Record+” process, under which cases driven largely by documentary or legal issues could be determined on written materials, with limited oral input only as needed. The proposals also contemplate new scheduling structures, a three-track system and mandatory case management, to determine whether a claim proceeds to a streamlined dispositive route or a conventional merits hearing.

None of this is final, but the direction is unmistakable. The system is moving toward earlier, evidence-based adjudication and away from the sprawling motions culture that developed around Rule 20. If Phase 2 proceeds as envisioned, summary judgment may not disappear, but I believe it will be transformed, less a standalone motion, more a built-in phase of a redesigned procedural model.