The Supreme Court of Canada has endorsed a new approach in Ontario stating “trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened.”

To combat these and other challenges, in 2010 Ontario enacted a new summary judgment rule. Under the 2010 rule, motion judges gained the power to make findings of fact and to hear oral evidence without convening a full trial. The 2010 rule states that a motion judge shall grant judgment unless there is a genuine issue requiring a trial. However, the 2010 rule left it open for the courts to consider how best to decide if a genuine issue requires a trial. In December 2011, the Court of Appeal for Ontario unveiled the ‘full appreciation test’ to aid the lower courts through this procedure. Unfortunately, the test did not achieve the desired outcome (namely cases decided earlier and more economically); motion judges continued to send cases to the perceived valhalla of a full trial, delaying justice and running up the costs for everyone involved.