Disposition without Trial

• Author: Janet Walker/Lorne Sossin
• Profession: Osgoode Hall Law School, York University/Faculty of Law, University of Toronto
• Pages: 205-227

205

CHAPTER 9

DISPOSITION

WITHOUT TRIAL

A. INTRODUCTION

The primar y goal of the Ca nadian civil justice system is the f‌inal dis-

position of the rights of the parties th rough either a trial before judge

and jury or a hearing. In theor y, a f‌inal order will not be i ssued until

a tri al or hearing h as been conducted. In reality, ver y few c ases re ach

trial. Most that are not settled, abandoned, or withdraw n are re solved

by virtue of an interlocutory or summary proceeding.

Recently, however, there has been a near-uniform trend towards

shortened and simplif‌ied civil litigation a nd the diversion of as many

civil disputes as possible to alternative means of dispute resolution. As

will be discussed in Chapter 11, dealing with civil justice reform, this

trend is justif‌ied by recourse to two primar y rationales: f‌irst, to ensure

judicial economy and a principled, cost-effective allocation of court re-

sources; and second, to ensure access to justice for litigants who might

be excluded from civil litigation by rea son of cost and delay.

This chapter covers six distinct aspects of how litigation m ay be

disposed of without a trial:

1) dismissi ng claims;

2) determining legal is sues;

3) summary judgment;

4) summary t rial;

5) simplif‌ied procedure; and

CIVIL LITIGATION206

6) procedural dispositions such as default judgments.1

B. SUBSTANTIVE DISPOSITION WITHOUT

TRIAL

Given that the cost and delay of the litigation process is particularly as-

soc iate d wi th di sco very (which typ ica lly i nclud es a d etai led r evi ew of a ll

relevant non-privileged documents and the oral examination of adverse

parties), parties sensitive to cost and delay in civil litigation will usual ly

have a clear interest in disposing of disputes prior to this pha se of t he

litigation. Providing procedural mechanisms for the disposition of civil

actions prior to trial is an important means of diverting litigation and

thereby enhancing both judicial economy and access to justice.

By far the most common disposition without trial is through settle-

ment or abandonment. The vast majority of litigation, in other words,

never i s adjudicated at all. Apart from settlement and abandonment,

there are three main ways in Canadian civil procedure by which a d is-

pute may be resolved prior to trial. First, the pleadings may be attacked

as disclosing no caus e of action. Second, t he determination of a legal

issue prior to trial may resolve the action. Third, one or both parties to

litigation may move for summary judgment.2

C. MOTIONS TO STRIK E, STAY, AND DISMISS

CLA IMS

All pleadings must disclose a legally valid cause of action or defence.

Whil e pleadi ngs are not expres sed in te rms of st atement s of law, the y are

required to contain a concise statement of the material facts upon which

the pleading par ty relies. These statements of fact must t hen give rise to

a valid lega l claim or defence. If t he harm alleged by a plaint iff in a state-

1 The main focus of t his chapter is the dis position of proceedings wit hout trial.

While motions for inte rim relief can have the ef fect of disposing of the matt er,

they are dis cussed in the following c hapter on pre-trial relief.

2 For a more detailed di scussion of these method s of pre-trial disposit ion, see

Robert Van Kesse l, Summary Judgments and D ispositions before Trial (Toronto:

Butterworth s, 2002). See als o John Page & Tim Pinos, Summary Judgme nt

(Aurora, ON: Canada La w Book, 1998); and Guy J. Prat te, Nadia Effendi, & Paul

Taylor, “Summary Judgment Mot ions: Recent Judicial Developments” (2008) 35

Advocates’ Q. 114.