COURT OF APPEAL FOR ONTARIO

Page: 103
[257] Second, we are not saying that a motion for summary judgment should never be
brought in a simplified procedure action. There will be cases where such a motion is
appropriate and where the claim can be resolved by using the powers set out in rule 20.04
in a way that also serves the efficiency rationale in Rule 76. For example, in a documentdriven
case, or in a case where there is limited contested evidence, both the full
appreciation test and the efficiency rationale may be served by granting summary
judgment in a simplified procedure action.
[258] As we noted above at para. 58, a responding party faced with an inappropriate
motion for summary judgment may move for directions under rules 1.04 and 1.05 to
request that the motion be stayed or dismissed. If a stay or dismissal is granted and if a
summary trial ultimately ensues, the affidavits prepared for the summary judgment
motion can serve as affidavits under rule 76.12 in order to salvage some of the resources
expended on the motion for summary judgment.
[259] We now illustrate these general observations by applying them to the present
case. As noted by the respondents, the motion judge was called on to resolve a number of
disputed issues:
(i)
Should the respondent Scarfo be found personally
liable given the conflicting evidence as to whether he
or his company was responsible for the construction?
(ii) Should the respondent homeowners be held
vicariously liable for the damage caused?