COURT OF APPEAL FOR ONTARIO

Page: 17
[24] Second, Mr. Osborne proposed, at p. 36, that Rule 20 be amended to address the
situation where a court is unable to determine the motion without hearing viva voce
evidence on discrete issues:
In my view, amendments to rule 20 ought to be made to
permit the court, as an alternative to dismissing a summary
judgment motion, to direct a “mini-trial” on one or more
discrete issues forthwith where the interests of justice require
viva voce testimony to allow the court to dispose of the
summary judgment motion. The same judge hearing the
motion would preside over the mini-trial.
[25] Mr. Osborne‟s third suggested amendment to Rule 20 was to eliminate the
presumption in rule 20.06 that substantial indemnity costs be awarded against an
unsuccessful moving party. As noted in the Osborne Report, at p. 36, there was concern
that Rule 20 was not being used in appropriate cases because of the potentially significant
adverse cost consequences of an unsuccessful motion. Mr. Osborne suggested replacing
the presumption of substantial indemnity costs with a rule conferring permissive
authority on the court to impose such costs on any party where the court is of the opinion
that a party has acted unreasonably in bringing or responding to a summary judgment
motion, or where a party has acted in bad faith or for the purpose of delay (at p. 37).
[26] In addition to these three suggested amendments to Rule 20, Mr. Osborne also
recommended that a new summary trial mechanism be adopted, similar to Rule 18A in
British Columbia‟s Supreme Court Civil Rules, B.C. Reg. 221/90 [now Rule 9-7]. Mr.