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CITATION:
George Weston Limited v. Domtar Inc.;1318214 Ontario Limited v. Sobeys Capital Incorporated,2012 ONSC 5001
COURT FILES NOS
.
: 07-CL-7061 and 10-8668-00CL
DATE:
20120903
SUPERIOR COURT OF JUSTICE
 – 
ONTARIOCOMMERCIAL LISTCOURT FILE NO
.
:
07-CL-7061
RE:
George Weston Limited, Plaintiff 
AND:
Domtar Inc., Defendant
COUNSEL:
C. Bredt, M. Kremer and M. Furrow, for the Plaintiff/Responding PartyA.
 
Mark, O. Pasparakis and L. O’Brien
, for the Defendant/Moving Party
COURT FILE NO
.
:
10-8668-00CL
RE:
1318214 Ontario Limited, 1464167 Ontario Limited, 1469789 Ontario Limited,1476182 Ontario Limited, 1478822 Ontario Limited, 2024036 Ontario Limitedand 2144011 Ontario Limited, Plaintiffs
AND:
Sobeys Capital Incorporated, Defendant
COUNSEL:
D. Sterns, for the Plaintiffs/Moving PartiesB.
 
Hanna and G. Moysa, for the Defendant/Responding Party
BEFORE:
D. M. Brown J.
HEARD:
June 12, 2012 (
G 
e 
org 
e 
W 
e 
st 
on v 
.
Do 
m 
t 
ar 
);July 27, 2012 (
1318214 On 
t 
ario Li 
m 
i 
t 
e 
d v 
.
 
S 
ob 
e 
 y 
s 
Capi 
t 
al 
)
REASONS FOR DECISION (
c
orr
ec
t
e
d)
 
- Page 2 -
I
.
 
Rul
e
1
.
04
 / 
1
.
05 motion
s
to
s
trik
e
out or
s
tay
s
ummary judgm
e
nt motion
s
 
[1]
 
A tension exists between the theoretical purpose of summary judgment motions and thereality of their practice. As articulated by the Court of Appeal in
Co 
m 
bin 
e 
d Air M 
ec 
hani 
c 
al 
S 
e 
rvi 
ce 
s 
In 
c 
.
v 
.
Fl 
e 
s 
c 
h 
, the package of rule amendments introduced in 2010, including theexpanded powers of motion judges on Rule 20 motions, was
motivated by “the overriding
objective of making the litigation system more accessible and affor 
dable for Ontarians”, with themotion for summary judgment “intended to provide a means for resolving litigation
expeditiously and with comparatively less cost than is associated with a conventional trial,
”
1
aswell as offering a more efficient resolution of disputes. Indeed, the principle of proportionality isadvanced by the expansion of the availability of summary judgment.
2
 [2]
 
That is the theory; the practice can be quite different. As the Court of Appeal observed:[T]he inappropriate use of Rule 20 has the perverse effect of creating delays and wastedcosts associated with preparing for, arguing and deciding a motion for summary judgment, only to see the matter sent on for trial.
3
 [3]
 
The Court of Appeal suggested one way this tension could be resolved in the event a party brought a motion for summary judgment which seemed inconsistent with the objectives of Rule 20:A party faced with a premature or inappropriate summary judgment motion should havethe option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed throughthe normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.
4
 [4]
 
In these two Commercial List actions separate motions were brought to strike outmotions for summary judgment. The summary judgment motions arise at different stages of the proceedings. In the
G 
e 
org 
e 
W 
e 
st 
on v 
.
Do 
m 
t 
ar 
action the plaintiff has embarked on developing asummary judgment motion before examinations for discovery have taken place. By contrast, inthe
1318214 On 
t 
ario Li 
m 
i 
t 
e 
d v 
.
 
S 
ob 
e 
 y 
s 
Capi 
t 
al In 
c 
orpora 
t 
e 
d 
proceeding discoveries basicallyare complete, although some undertakings and a few days of re-attendance examinations arerequired. When the plaintiffs in the
S 
ob 
e 
 y 
s 
action sought a trial date, the defendant advised thatit intended to bring a motion for partial summary judgment to limit the issues for trial.[5]
 
Since both motions raise important procedural issues about motions to strike, or stay,summary judgment motions, I have decided to release one set of reasons for both motions. Part I
1
2011 ONCA 764, paras. 1 and 2.
2
 
Ibid 
.
, para. 3.
3
 
Ibid 
.
, para. 4.
4
 
Ibid 
.
, para. 58.
 
- Page 3 -of these Reasons will address common principles concerning motions to strike. Parts II and IIIwill apply those principles to the particular facts of the motion in each action.
PART I: GENERAL CONSIDERATIONS ABOUT MOTIONS TO STRIKE
,
OR STAY
,
 SUMMARY JUDGMENT MOTIONS
[6]
 
To treat motions to strike out summary judgment motions as just another type of motionwhich should be added to the judicial docket would ignore, in my view, the larger context withinwhich these hitherto uncommon motions must be considered. Consequently, before addressingthe specific issues raised by these motions to strike, one must take account of the larger contextin which contemporary civil litigation occurs in Ontario, a context which informs the proportionality-oriented case management approach I propose for dealing with these motions tostrike.[7]
 
In proceedings on the Toronto Region Commercial List concerns about the prematurity or appropriateness of any summary judgment motion should be addressed through the 9:30appointment or case conference case management tools currently employed on the List. Giventhose case management tools, motions to strike out summary judgment motions should only be brought with the leave of the Commercial List case management judge. Treating theappropriateness of a summary judgment motion as a case management-type of issue flows fromseveral factors: (i) the constrained operating environment facing the Superior Court of Justice,(ii) the flexibility of the inherent powers enjoyed by judges of this Court, (iii) the guidanceoffered by the Court of Appeal in the
Co 
m 
bin 
e 
d Air 
decision about when it is appropriate toresort to a summary judgment motion, and (iv) the need to approach the alternative to summary judgment motions
 – 
the civil trial - in new ways. Let me turn, then, to consider these contextualfactors which inform the approach I have adopted for dealing with these two particular motionsto strike.
II
.
 
Th
e
larg
e
r
c
ont
e
xtA
.
 
Th
e
prima
c
y of publi
c
 
c
ourt
s
in
c
ivil litigation
[8]
 
Although not unheard of prior to the
Co 
m 
bin 
e 
d Air 
decision, a motion to strike out, or stay, another motion was rare. The
Co 
m 
bin 
e 
d Air 
decision suggested resorting to such motionsas a possible means by which to address concerns about premature or inappropriate summary judgment motions and, not surprisingly, the Bar has responded by initiating such motions.[9]
 
At the heart of these two motions lies the issue about how courts should best manage thesummary judgment process and fashion an approach which ensures that parties use summary judgment motions in the circumstances identified as appropriate by the Court of Appeal in
Co 
m 
bin 
e 
d Air 
. The disposition which I make of these two motions rests in a specific view of thecase management powers of a superior court of record and how those powers can and should be
used to ensure that Ontario’s public courts continue to provide timely, cost
-effective and fair access to justice to civil litigants. If we, as judges of a superior court of record, are unable torespond to the challenges and stresses presently confronting our civil litigation system, we risk losing litigants to the private-sector justice system in which an ever increasing number of private
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