On January 5, 2017, the Court of Appeal for Ontario issued a further decision dealing with the important question of whether determinations made on a summary judgment motion are binding on all parties to the proceeding, regardless of whether a party takes a position or leads evidence on an issue.
The case involved a plaintiff who had suffered injuries in a motor vehicle accident where the driver of the other car was unknown when the claim was commenced. Eventually it was discovered that the car belonged to a car rental company. The plaintiff brought the claim against the car rental company and unnamed driver as well as against his insurer, which would be responsible for the damages in the event there was no identifiable defendant. The insurer defended the claim and cross-claimed against the car rental company and the unnamed driver, who was also subsequently identified at the discovery of the plaintiff. The car rental company and driver defended on the basis that the identity of the driver and/or owner of the vehicle were unknown.
The insurer moved for summary judgment on the basis that the plaintiff's claim no longer involved an uninsured motorist. The plaintiff indicated he would respond to the summary judgment motion, if necessary, depending on the response received by the car rental company and the driver. The car rental company and driver took no position on the summary judgment motion. At the hearing of the summary judgment motion, only the insurer appeared. The court was mistakenly advised that the motion was on the consent of all parties and granted the motion "on consent".
After the order had been issued, the car rental company and driver put the plaintiff on notice that they did not view the summary judgment order as having any impact on their identity defence. The plaintiffs sought clarification from the court and an order estopping the defendants from taking this position. This motion was dismissed on the basis that the car rental company and driver were not estopped from litigating the identity defence because they did not "actively participate" in the summary judgment motion and had "no right or interest" in keeping the insurer in the action. The motion judge held that since the car rental company and driver were "disinterested in the outcome" and "did not participate in it", they could not be parties for the purposes of estoppel.
The Court of Appeal did not agree with this approach and held that the identity defence was directly affected by the summary judgment motion and that, as parties to the action, the car rental company and driver were bound by the order regardless of the position taken on the motion. The summary judgment motion releasing the insurer from the action could only have been granted if the judge accepted that there was no genuine issue for trial with respect to the identity of the car owner and driver and thus no identity defence on behalf of the car rental company and driver. If the court had not made this determination it could not have released the insurer from the action.
The Court of Appeal was clear to make the point that a summary judgment motion (or any motion) is binding on all parties in the litigation, not merely those that participate on the motion. Parties must therefore think critically and strategically not only about the issues being determined on the motion but also about how that determination impacts or could impact any issues remaining at trial. Each party must put its best foot forward or risk having its fate decided on a motion without its full participation.
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