Burden of production in a motion for summary judgment

A continuing issue on motions for summary judgment is what must the responding party do to avoid judgment?

The law is quite clear – the moving party must establish the burden of production and show a prima facie case for summary judgment before the respondent has any obligation to adduce any evidence at all.

Should the moving party meet the burden of production then the respondent must provide a basis to show there is a triable issue or summary judgment will follow.

This week’s Court of Appeal decision in Webster v. Thomson, 2008 ONCA 730 makes this point quite clear:

[17] In Lang v. Kligerman, 1998 Can LII 4866 (ON C.A. ) at para. 9, this court succinctly set out the onus resting on the parties on a motion for summary judgment:

The authorities are clear that the onus is on the moving party to establish that there is no genuine issue for trial with respect to a claim or defence. There is no onus on the responding party. However, where the evidence presented by the moving party prima facie establishes that there is no genuine issue for trial, and the moving party is entitled to summary judgment as a matter of law, to preclude the granting of summary judgment the responding party assumes the evidentiary burden of presenting evidence which is capable of supporting the position advanced by the responding party in its pleading. On the basis of this evidence, when considered with all the evidence before the motions judge, it will then be for the motions judge to determine whether the evidentiary record raises a genuine issue for trial.

[18] In this case, based on the materials filed by the respondents, it cannot be said that there were no genuine issues for trial or that they were entitled to summary judgment as a matter of law.