There have been some hints that the test to obtain summary judgment under R 20 is softening. These hints, mainly Superior Court decisions where, candidly, the chances for ultimate success by the losing party are vanishing small have not given appeal review.
Some suggest R 20 should be softened to allow for easier summary judgment. No doubt the Rules Committee is considering the issue.
That said, today's decision in Bank of Nova Scotia v. BCP Bank Canada , 2008 ONCA 367 makes it clear that the Court of Appeal has not moved and the test for obtaining summary judgment remains high.
The Court writes:
[4] We are satisfied that there is a genuine issue for trial in respect of the alleged agreement between BCP and Mr. D'Abruzzo. We are also satisfied that there is a genuine issue for trial as to whether, if there was an agreement, it was supported by mutual consideration. We therefore allow the appeal. An order will go setting aside the summary judgment including the costs award.
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