COURT OF APPEAL FOR ONTARIO

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Osborne noted, at p. 37, that such an option “may provide an effective tool for the final
disposition of certain cases on affidavit and documentary evidence alone.”
[27] These recommendations are encapsulated as follows in the List of
Recommendations from the Osborne Report:
13. Do not amend the test of “no genuine issue for trial” in
rule 20.
14. Amend rule 20 to expressly confer on a motion judge
or master the authority to weigh evidence, evaluate credibility
and draw any reasonable inference from the evidence and
documents filed, including adverse inferences where a party
fails to provide evidence of persons having personal
knowledge of contested facts. This power, however, ought
not to be exercised where the interests of justice require that
the issue be determined at trial.
15. Amend rule 20 to permit the court to direct a “minitrial”
on one or more issues, with or without viva voce
evidence, where the interests of justice require a brief trial to
dispose of the summary judgment motion. The same judicial
official hearing the summary judgment motion would preside
at the “mini-trial.”
16. Eliminate the presumption of substantial indemnity
costs against an unsuccessful moving party in a summary
judgment motion in rule 20.06. Replace it with a rule
conferring permissive authority on the court to impose
substantial indemnity costs where it is of the opinion that any
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.
17. Adopt a new summary trial mechanism, similar to rule
18A in British Columbia.