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[101] The seminal case with respect to motions for summary judgment is Hryniak v. Mauldin,
[2014] 1 S.C.R. 87, authored by Karakatsanis J. Therein, the Supreme Court described
that summary judgment motions offer a solution to the oft slow and expensive system of
civil procedure that culminates in a trial. A trial is not necessary if a summary judgment
motion can achieve a fair and just adjudication, allowing the judge to make the necessary
findings of fact, apply the law to those facts and is a proportionate, more expeditious and
less expensive means to achieve a just result than going to trial.
[102] At paragraph 66, Karakatsanis J. described the applicable test on a motion for summary
judgment. First, the judge should determine if there is a genuine issue requiring trial
based only on the evidence before her, without using the new fact-finding powers. If
there does appear to be a genuine issue requiring a trial, the motions judge should then
determine whether a trial can be avoided by using the enhanced powers found in Rules
20.04(2.1) and (2.2). The use of such powers will not be against the interests of justice if
they will lead to a fair and just result and will serve the goals of timeliness, affordability
and proportionality in light of the litigation as a whole.
[103] A number of principles have emerged and are frequently referenced in summary
judgment motions. A party may not rest on allegations in its pleadings on a motion for
summary judgment but instead must “put its best foot forward” or “lead trump or risk
losing”. Furthermore, the court is entitled to assume that the record on a motion for
summary judgment contains all the evidence the parties would present at trial. It is not
open to a party resisting summary judgment to rely on the prospect that additional
evidence may be tendered at trial to justify the necessity of proceeding to trial (see:
James v. Chedli, 2021 ONCA 593 at para. 31).
[104] It must be kept in mind that despite Karakatsanis J’s. comments regarding summary
judgment motions being used expansively to improve access to justice, there is no
imperative for courts to use such motions in every case. The overarching goal remains to
have a fair process that results in a just adjudication of disputes (see: Royal Bank of
Canada v. 1643937 Ontario Inc., 2021 ONCA 98, at para. 25). As noted by Nordheimer
J.A. in Mason v. Perras Mongenais, 2018 ONCA 978, at para. 44, “nothing in Hryniak
detracts from the overriding principle that summary judgment is only appropriate where it
leads to a ‘fair process and just adjudication’”.
[105] Where there are deficiencies in the record before the court on a summary judgment
motion, it may be inappropriate for the motions judge to resolve the issues in dispute
(see: FFO Fiberglass v. Distribution Composites, 2019 ONSC 4291, at para. 17).
The Duty of Good Faith Performance of Contracts:
[106] The Supreme Court of Canada discussed whether there was a duty of good faith
performance of contracts under Canadian common law in Bhasin v. Hrynew, 2014 SCC
71. Cromwell J., for the court, described the organizing principle as simply being that
parties must perform their contractual duties honestly and reasonably, and not