Occasionally summary judgment motions seeking one form of redress, ultimately leads to an order or judgment that is completely against the moving party. Hence these types of situations are referred to as boomerang motions because they are flung in one direction, but mysteriously swing back to negatively impact the party that threw it. The moving party typically complains that the court lacked jurisdiction to make any order against them absent some formal cross-motion from the other side.
This typically occurs in Summary Judgment motions, but in theory it could apply to any motion. Summary judgment motions are particularly susceptible to this type of issue because they are often defeated simply by raising a triable issue. Hence, summary judgments were sometimes viewed as a “freebie.” A party could, by way of example, bring a summary judgment motion to dismiss a claim based on a limitation period defence, and if unsuccessful, the motion would be dismissed on the grounds that there was a triable issue, and the defendant remained free to argue it again at trial. It worked the other way as well, where a plaintiff may take a shot at summarily fixing the defendant with liability, and if unsuccessful due to the fact that there was a triable issue, the plaintiff could take a second stab at testing liability at trial.
But the rules and judicial scrutiny evolved over time, and over the past decade has become more robust for summary judgment motions. Courts are more willing than ever to summarily decide the issue before them. Using the illustrations above, a defendant arguing that a limitation period ends the litigation may very well find that the court will not only dismiss the request, but conclude that the limitation period defence fails, and that the defendant cannot raise it at trial. Say bye-bye to the “freebie.” The defendant’s pro-active attempt to obtain favourable relief effectively boomeranged into a completely opposite outcome: a complete bar to raising the limitation defence.
The last argument then becomes whether the court could actually make an award against the moving party, absent a cross-motion from the plaintiff: in this example, the absence of any motion asking the court to strike down the limitation period defence.
The Court of Appeal ruled that boomerang motions are acceptable, provided the moving party is put on notice that this is to occur, and is given time to respond. The following was stated as examples of how the moving party could be placed on notice in a fair way:
(i) at the start of a motion hearing, the judge can inquire whether a reverse motion will be sought;
(ii) if during the course of the hearing the judge forms the view that he or she might grant a reverse summary judgment, the judge can inform the parties to allow them to respond;
(iii) if during the course of preparing reasons disposing of the motion the presiding judge forms the view that granting a reverse order might be appropriate in the circumstances, the judge should so inform the parties and afford them an opportunity to make further submissions; and
(iv) in those judicial regions where scheduling a summary judgment motion must pass through some form of triage or practice court, the motion scheduling request form can inquire whether the responding party intends to ask for a reverse summary judgment.
One very recent case (Lees v. Ahmadi et. al., 2022 ONSC 1114) dealt with this issue. The court was asked by the plaintiff purchaser to conclude that the vendor breached the Agreement of Purchase and Sale, and the court disagreed with the plaintiff’s position. When grappling with the type of order to make, the court said the following:
“[43] As I have found that the APS was not breached by the defendant, the plaintiff’s motion fails. Rule 20, however, permits me to grant summary judgment against the moving party (purchaser) (Alof v. Ikeno, 2014 ONSC 2087, at para. 25; Hazel v Rainy River First Nations, 2016 ONSC 5875, at para. 20). Here, the action cannot succeed because it is dependent on the correctness of the …(purchaser’s)…. interpretation of the APS, which interpretation I have rejected. Accordingly, I grant summary judgment in favour of the defendant …(vendor).”
The question is, did the judge in Lees follow the process outlined by the Court of Appeal? Clearly there is no reference to “putting the moving party on notice.” But I submit that Lees represents another “reason” a boomerang order can be made: by binary exclusion. If the answer can only be one of two things, and one is ruled out, the other must be the outcome by default, and the parties must be mindful of this possibility, without needing it to be formally spelled out.
Graham v. Toronto (City), 2022 ONCA 149
https://www.canlii.org/en/on/onca/doc/2022/2022onca149/2022onca149.html