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 primary goal of the Canadian civil justice system is the f‌inal dis-

position of the rights of the parties through either a trial before judge

and jury or a hearing. In theory, a f‌inal order will not be issued until

a trial or hearing has been conducted. In reality, very few cases reach

trial. Most that are not settled, abandoned, or withdrawn are resolved

by virtue of an interlocutory or summary proceeding.

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

shortened and simplif‌ied civil litigation and 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 primary 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 reason of cost and delay.

This chapter covers six distinct aspects of how litigation may be

disposed of without a trial:

1) dismissing claims;

2) determining legal issues;

3) summary judgment;

4) summary trial;

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 usually

have a clear interest in disposing of disputes prior to this phase of the

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 is adjudicated at all. Apart from settlement and abandonment,

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

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

as disclosing no cause of action. Second, the 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 STRIKE, STAY, AND DISMISS

CLAIMS

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 party relies. These statements of fact must then give rise to

a valid lega l claim or defence. If t he harm alleged by a plaintiff 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.