Friday, June 19, 2009

CAS Summary Judgement Motions

This is not to be considered legal advice. Only a lawyer in Ontario can give legal advice. (possibly a paralegal if licensed by the Law Society of Upper Canada) There is also no remuneration or financial or other consideration being exchanged regarding the publication of this article of legal information.(not advice)

When a Children's Aid Society makes a motion for summary judgment to a court, it means that they are of the opinion, and will try to convince a judge or court of their assertion that there are "no genuine issues" which need to be determined in a trial, and that the judge should make a life altering decision to place kids in foster care temporarily or permanently based on the information presented in the Summary Motion.

This is done to speed up the procedures and prevent kids from remaining in "limbo" as court matters drag on and on.

The obligation or "onus" is on the Society to convince the judge or to present evidence on the summary motion that there are no genuine issues for trial in a regular trial.

Even though the obligation or "onus" is not on the respondent (parents etc) to prove that there are no genuine issues for trial, it might be helpful to present evidence early in the court documents which state that there are genuine issues for trial in this motion and that the motion or parts of it should be quashed (talk to a lawyer about this part for clarification and / or advice. Trust your gut, use your lawyer as guidance. IF your lawyer does or is not representing YOUR VIEWS in court, stand up and tell the judge that your lawyer is not acting as instructed by yourself or is going against your instructions and explain what your instructions were.)

Also, see the following case to learn more about or understand better "genuine issues for trial" in summary motions. Start reading around paragraph 20 or so.

In a clip from paragraph 27 the following was stated

[27] A very clear statement of where the original and ultimate onus must lie can be found in the judgment of Justice Thomas A. Heeney. in Joanne C. J.-R. v. Children’s Aid Society of Oxford County. He cited with approval the judgment of Justice George T. Valin in the Children’s Aid Society of the District of Nipissing v. Marielle M.[14] At paragraphs [10]-[12], Justice Valin provided a useful summary of the principles applicable to motions for summary judgment:

A motions judge hearing a motion for summary judgment is required to decide whether the moving party has established that there is no genuine issue for trial. If the motions judge is satisfied that there is no genuine issue for trial, then summary judgment must be granted. The court’s function is not to resolve an issue of fact but to determine whether a genuine issue of fact exists: Aguonie v. Galion Solid Waste Material Inc.[15]

If the evidence on a motion for summary judgment satisfies the court that there is no issue of fact which requires a trial for its resolution, the requirements of the rule have been met. It must be clear that a trial is unnecessary. The burden is on the moving party to satisfy the court that the requirements of the rule have been met: Irving Ungerman Ltd. v. Galanis.[16]

A motions judge, on a Rule 20 summary judgment motion, should not resolve issues of credibility, draw inferences from conflicting evidence, or from evidence that is not in conflict when more than one inference is reasonably available. Those functions are reserved for the trier of fact: Transamerica Occidental Life Insurance Co. v. Toronto-Dominion Bank.[17]

[28] Justice Heeney then went on to assist with what constitutes “no genuine issue for trial.” He pointed out that the Ontario Court of Appeal has equated that phrase with “no chance of success”, and “plain and obvious that the action cannot succeed” : Prete v. Attorney General for Ontario.[18]

[29] In Catholic Children’s Aid Society of Metropolitan Toronto v. Lisa Marie O. and Michael P., Justice Sandra Chapnik also provided a useful yardstick for measuring whether there is a genuine issue for trial. She says that it is only appropriate to grant summary judgment “when the outcome is a foregone conclusion”.[19]

John Dunn
The Foster Care Council of Canada

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