The fundamental purpose of motions for summary judgment is to provide proportionate, cost-effective and timely dispute resolution. Disputes that do not present a genuine issue requiring trial based on the evidence before the court ought not to be dragged through the courts and waste scarce judicial resources.
One of the risks associated with such motions is the possibility that a court will not only dismiss the order sought, but actually make an order against the moving party, so that the party that brought a motion for summary judgment ends up with a summary judgment order against itself.
While that is generally uncontroversial if the respondents brought a cross-motion for such relief, there are circumstances when such orders are appropriate, at least in Ontario, where no cross-motion has been filed. Such orders are known as “boomerang” orders.
Some jurisdictions generally prohibit such orders. The New Brunswick Court of Appeal, for example, in Abrams v. RTO Asset Management, 2020 NBCA 57, held that unless compliance with that province’s motion requirement is dispensed with by an order, a boomerang summary judgment is not an option:
A motion, formal or informal, is a condition precedent to a summary judgment under Rule 22, and an order dispensing with that requirement, which is not a matter of form, will be appropriate only in exceptional circumstances Unless compliance with the motion requirement under Rule 22 is dispensed with by an order under Rule 2.01, a "Boomerang" summary judgment is not an adjudicative option. A motion, formal or informal, is a condition precedent to a summary judgment under Rule 22, and an order dispensing with that requirement, which is not a matter of form, will be appropriate only in exceptional circumstances.
Therefore, in that province, a motion judge’s role is limited to either granting the summary motion if he or she is satisfied that no genuine issue requiring a trial exists, or denying the motion if the moving party has failed to demonstrate the absence of such an issue: Chiasson-Basque v. Enterprise Rent-A-Car Canada Ltd. / Enterprise Location d'Autos Canada Ltée, 2024 NBKB 214; Alfred Whiffen v. Mariner Partners Inc., 2024 NBKB 22. They generally cannot grant summary judgment to the respondent.
The Ontario Court of Appeal has gone another way and allows such orders in certain circumstances. As the court made clear in Saxberg v. Seargeant Picard Incorporated, 2024 ONSC 1079, however, courts must ensure that another main purpose of summary judgment motions is respected: the achievement of a fair and just result.
A fair and just result will generally not be achieved if the party on the receiving end of a boomerang order had absolutely no idea that such an order could be coming. That was the case in Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, where the motion judge had failed to put the respondent on any kind of notice that he might grant judgment against it or afford it an opportunity to address that litigation risk. Similarly, in Gordashevskiy v. Aharon, 2019 ONCA 297, which was cited by the court in Saxberg, the Court of Appeal was critical of what it called the “unfortunate practice employed by some motion judges of deciding, on their own initiative and without consultation with the parties, to grant a boomerang order notwithstanding the absence of a cross-motion by the respondent to the summary judgment motion”. Again, it was the lack of any kind of notice to the parties that precluded a fair and just outcome.
Where the respondent could have seen it coming, however, the Court of Appeal has confirmed that boomerang motions can be appropriate. In Saxberg, it was clear that the motion judge canvassed the issue of a “boomerang” order with the parties given the Saxbergs’ request for one in their factum, and SPI’s counsel agreed that one could be made if his client’s summary judgment motion was dismissed.
In 1062484 Ontario Inc. v. McEnery, 2021 ONCA 129, counsel, through participation in case conferences dealing with the scheduling issues, were effectively on notice that the plaintiffs’ motions might be unsuccessful, and summary judgment could be ordered in the respondent’s favour.
In Meridian Credit Union Ltd. v. Baig, 2016 ONCA 150, even though there was no cross-motion asking for summary judgment, the Court of Appeal held that the motion judge did not err by granting summary judgment, since counsel for the appellant submitted that all of the relevant evidence was before the court and explicitly invited the motion judge to render a decision in favour of either party.