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Summary judgment4/6/2023 It held that summary judgment motions are intended to achieve a fair and just result and it was acknowledged that reverse summary judgment is unfair without any kind of notice. The Court of Appeal disagreed with this argument. ![]() Most notably, it argued that the motion judge acted procedurally unfairly by granting a reverse summary judgment in the absence of a notice of cross-motion seeking this relief, or a notice to the City of the judge’s intention to grant such a motion. ![]() The City appealed the decision on a few grounds. The plaintiff did not bring a cross-motion, but the motion judge granted summary judgment in her favour, dismissed the City’s notice defence and declared that the action was not statute-barred. The motion judge dismissed the City’s motion, finding that the failure to provide the 10-day notice did not bar the action, as the plaintiff had a reasonable excuse for her delay in notification, and the City was not prejudiced in its defence. The City brought a motion for summary judgment to dismiss the action on the basis that the plaintiff failed to notify the City within 10 days of the injury, as required by the City of Toronto Act (the “ Act”). Toronto (City), 2022 ONCA 149 an individual plaintiff became injured after tripping in a pothole on City property and commenced a lawsuit. Essentially, a “boomerang” summary judgment arises where the party responding to a summary judgment motion is granted judgment in their favour, even though they were not the one seeking it. In the latest development, the Ontario Court of Appeal tackled a motion judge’s use of the “boomerang”, or reverse summary judgment. Please see our previous newsletters here and here for breakdowns of such developments. ![]() Over the past decade, there are few areas of litigation which have undergone as much change as Ontario’s summary judgment regime.ĭuring that time, the test for granting summary judgment has been set out, re-stated and re-invented, and has undergone a number of developments along the way, some of which were not necessarily intended.
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