COURT OF APPEAL FOR ONTARIO

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prospect of success at trial” test, as appears in the Civil Procedure Rules in England and
Wales. However, Mr. Osborne expressed doubt that such a wording change would
accomplish the objective of expanding the scope of summary judgment, noting that
English case law interpreting the “no real prospect of success” test is as, or even more
restrictive than, this court‟s interpretation of the “no genuine issue for trial” test.
[23] Mr. Osborne recommended the following three changes to Rule 20. First, he
proposed eliminating the jurisprudential restrictions that had been placed on the powers
of a motion judge or master. In the words of the Report, at p. 35:
[F]rom my reading of the Court of Appeal‟s decisions on
summary judgment, it is how the court has confined the scope
of the powers of a motion judge or master under rule 20, not
the “no genuine issue for trial” test itself, that has limited the
effectiveness of the rule.
If the objective is to provide an effective mechanism for the
court to dispose of cases early where in the opinion of the
court a trial is unnecessary after reviewing the best available
evidence from the parties, then it seems to me to be preferable
to provide the court with the express authority to do what
some decisions of the Court of Appeal have said a motion
judge or master cannot do. That is, permit the court on a
summary judgment motion to weigh the evidence, draw
inferences and evaluate credibility in appropriate
cases. Therefore, any new rule 20 should provide a basis for
the motion judge to determine whether such an assessment
can safely be made on the motion, or whether the interests of
justice require that the issue be determined by the trier of fact
at trial.