Rule 48.04(1) requires a party to seek leave of the court to bring most motions, beyond certain enumerated exceptions, once a matter has been set down for trial. To obtain that leave, a party has traditionally been required to show a substantial and unexpected change of circumstances. See Tanner v. Clark, [1999] O.J. No. 581 (Gen. Div.).
Where that motion is for summary judgment, however, judges are increasingly applying a more pragmatic and liberal test. In Allen v. Prince Edward County, 2012 ONSC 2137 (CanLII), the defendant was granted leave to bring a summary judgment motion where there was merit to the motion and no prejudice to the plaintiff that could not be compensated for by costs. Rather than requiring a substantial and unexpected change of circumstances, the court accepted the suggestion in Tanner v. Clark that for motions affecting substantive rights, leave should be granted where there is merit to the proposed motion and no prejudice.
Recently, the court adopted an even less restrictive test for granting leave. In Fruitland Juices Inc. v. Custom Farm Service Inc., 2012 ONSC 4902 (CanLII) the court noted that a motion for leave to bring a summary judgment motion was different from a traditional motion for leave under 48.01. A party attempting to bring a summary judgment motion is not contending that they are not ready for trial and need to re-open the case. Instead, a summary judgment motion is intended to spare the parties the unnecessary expense of a trial or of proving unnecessary issues within a trial.
For that reason, the court rejected the test requiring “substantial and unexpected change in circumstances” where a party sought leave to bring a summary judgment motion. Instead, Justice Quinn concluded that as long as a successful motion will be less costly and time consuming than a trial, and will not unduly delay the start of the trial, then the moving party does not need to explain his or her choice of timing. In that respect, the Fruitland Juices decision goes beyond the decisions in Allen and Tanner, as the moving party did not have to show merit or lack of prejudice to obtain leave.
Both these recent decisions may be indicative of a trend in Superior Court to encourage parties to bring appropriate motions for summary judgment, even once an action has been set down for trial.