In yesterday’s blog, my colleague Umair observed that moving for summary judgment may carry significant risks. This is particularly so where only the moving party seeks to use the process and, where credibility is in dispute, the Court will often be compelled to find that a genuine issue for trial exists.
The situation is quite different, however, when the parties agree to use the summary judgment process to adjudicate a dispute. Where the parties have agreed to have all or part of a claim determined by summary judgment and the Court is satisfied that it is appropriate to grant same, judgment will issue one way or the other.
A collaborative approach to summary judgment may be an advisable manner of adjudication, particularly having regard to the principles of proportionality with regard to the assets in dispute. As a general rule, if counsel agree that the matter can be adjudicated based on an agreed Statement of Fact and transcripts of examinations for discovery, Judgment may be made. The key determination is whether the viva voce evidence of witnesses and the “machinery” of cross-examination before the trier of fact is required for the fair and just adju
dication of the case. Note that the Judge may direct the matter to trial even if counsel submit the case on consent for summary judgment (this would be a rare occurence indeed).
An example of a collaborative motion for summary judgment is the decision in Rammage v. Estate of Roussel (2016 ONSC 1857). In this case, Alfred Roussel (“Alfred”) and Ruth Roussel (“Ruth”) were married in 1997. Each had two children from previous relationships. In 1998, Alfred and Ruth executed wills by which they gave their respective estates to each other and provided for an equal division amongst their four children on the death of the surviving spouse (the “1998 Wills”). Alfred died 2009 leaving his estate to Ruth. Ruth decided to prepare a new will in 2010 leaving the entirety of her estate to her two children. Ruth later died in 2013.
Alfred’s children took issue with the fact that Ruth’s estate passed entirely to her beneficiaries and not them and litigation ensued.
As there was no direct written or oral confirmation that the 1998 Wills were mutual, Alfred’s children had to rely on extrinsic evidence to support the existence of a binding legal contract. Justice Reid considered the context and the agreed evidence. In finding that the deceased made a mutual will, the Court considered: (i) the 1998 Wills were made in context of 13 years of cohabitation including a commitment of marriage, (ii) Alfred had been the breadwinner for many years, (iii) Alfred and Ruth had acted throughout their marriage as if they had a family consisting of four children, (iv) the obituary was indicative of a unified family and (v) Alfred and Ruth had told the four children they would be left everything once both had passed.
Thanks for reading,
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