Civil Case Management

Rules: Summary Judgement

Ahmad Iftikhar
District & Sessions Judge
Conceptual Framework

Order XV A
1. Either party may move an application and identify whole claim or
defence or each claim or defence or Court may on its own initiative
Scope :
1. Respondent has no real prospect of succeeding on such claim
or successfully defending such claim and
2. There is no genuine dispute as to any material fact requiring
trial and party is entitled to judgment as a matter of law or
3. Parties agree to have the claim determined by a summary
judgement
Conceptual Framework
 2. Time to file an application- Subject to the provisions
of Order IX-A, unless the Court otherwise directs to
previnjustice, a party may file an application for
summary judgment or the Court may consider the
grant of summary judgement its own initiative at any
time after the close of period allowed to the parties for
filing list of documents under Order XIII
Conceptual Framework
 3. Evidence for purposes of summary judgment
hearing-An applicant asserting that a fact cannot be or
is genuinely disputed must support the assertion by:(a)
citing particular parts of any documentary
evidence filed with the Court along with the
pleadings; or(b) showing that the documentary
evidence cited does not establish the absence or
presence of a genuine dispute or that the
respondent cannot produce admissible evidence
to support the fact
Conceptual Framework
 4. Procedure-(1) When an application for summary
judgment is filed, the respondent shall be given at least
fourteen (14) days notice of the date fixed for the
hearing along with a copy of the application.(2)The
respondent may file a reply to the application for
summary judgment, and serve copies on every other
party to the application at least seven (07) days before
the summary judgment hearing and the applicant may
file a rejoinder to the response, and serve copies on
every other party to the application at least three (3)
days before the summary judgment hearing
Conceptual framework-Suo Moto
 Where the summary judgment hearing is fixed by the
Court on its own initiative, any party to the proceeding
may may file an affidavit citing particular parts of the
documentary evidence filed with the Court to support
or oppose the notice, issued by the Court to consider
grant of summary judgment and serve copies of such
affidavit on every other party to the proceedings at
least seven (07) before the summary judgment and any
party may file a response to such affidavit and serve
copies on every other party to the proceedings three
(03) days before the summary judgment hearing
Conceptual framework
 5. Orders the Court may pass- After giving notice and
allowing the above specified time to respond, the Court
may grant summary judgment along with costs;(b)
dismiss the application along with costs;(c) grant
partial relief in relation to one or more claims or
defenses identified in the application that shall be
deemed to be established, unless the judge orders
otherwise to prevent injustice, or(d) issue any other
appropriate order with directions about the
management of the case.
Scope of Summary Judgment
 Expanded Scope lies in (Building Blocks) :
 Examination of Parties
 Discovery by Documents and Interrogatory
 Affidavit
 Local Commission
Scope of Summary Judgment
 Historical Perspective:
 Merchants in England bemoaned huge delays
 In 1855, Parliament devised a solution to the problem in
Keating's Act, which was also called the Summary Procedure on
Bills of Exchange Act.
 Keating's Act was copied in America.
 As in the English system, plaintiffs involved in summary
proceedings in American state courts were entitled to judgment
in their favor for the amount claimed unless a defendant
responded with an affidavit of defense denying the right to
collect.
Scope of Summary Judgment: historical Perspective

 Yale Law Journal in 1929, Charles E. Clark, "Except where a trial

is necessary to settle an issue of fact”
 When the Federal Rules of Civil Procedure took effect in 1938,
they included a provision for summary judgment in Rule 56
 Second Circuit's 1946 decision in Arnstein v. Porter- Judges
Jerome Frank and Charles Clark.
 'slightest doubt"' about an issue of fact was enough to make
summary judgment inappropriate.
 Clark disagreed, accusing Frank of deciding the case based on
"a belief in the efficacy of the jury to settle issues . . . and a
dislike of [Rule 56]" itself.
Summary Judgment
 In 1986, on the same day, the U.S. Supreme Court decided three
cases referred to as “the Summary Judgment Trilogy.”
 Celetox Case: death of her husband, Louis H. Catrett, resulted
from his exposure to products containing asbestos
 Summary judgment was proper because respondent had "failed
to produce evidence that any [Celotex] product . . .was the
proximate cause of the injuries
 In particular, petitioner noted that respondent had failed to
identify, in answering interrogatories, any witnesses who could
testify about the decedent's exposure to petitioner's asbestos
products
Summary Judgment –Celetox Case
 Under Rule 56(c), summary judgment is proper "if the
pleadings, depositions, answers to interroga
tories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is
entitled to a judgment as a matter of law." In our view,
the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery.
Summary Judgment Anderson Case
 The Investigator, an investigative news magazine,
published three articles about the Liberty Lobby, calling
the organization and its founder Willis Carto
antisemitic, racist and Fascist
 Liberty Lobby and Carto sued Investigator Publishing
and its publisher, journalist Jack Anderson for libel
 The defendants moved for summary judgment under
the standard set by New York Times Co. v. Sullivan,
which requires a plaintiff to prove with
clear and convincing evidence that a defamatory
statement was made with actual malice
Summary Judgment Anderson Case
 In support of this latter assertion, petitioners submitted
the affidavit of Charles Bermant, an employee of
petitioners and the author of the two longer articles.
 In this affidavit, Bermant stated that he had spent a
substantial amount of time researching and writing the
articles and that his facts were obtained from a wide
variety of sources.
 . Attached to this affidavit was an appendix in which
Bermant detailed the sources for each of the statements
alleged by respondents to be libelous.
Summary Judgment-Key Take Away
 Anderson
 the court must view the evidence in the light
most favorable to the nonmovant/respondent
 A fact issue is material if it must be decided in order
to resolve the substantive claim or defense to which
the motion is directed.
 "the materiality determination rests on the
substantive law, [and] it is the substantive law's
identification of which facts are critical and which facts
are irrelevant that governs.
Summary Judgment
 Celetox
 In Celotex Corp. v. Catrett, for example, although there
were many issues concerning defendant's liability for
death allegedly caused by its product, the threshold
issue was whether the decedent had been exposed to
that product. If that essential element could not be
proved, summary judgment was appropriate regardless
of disupute over other issues
Summary Judgment-Genuine Dispute/Burden of Proof

 the party moving for summary judgment must come forward

with an initial showing that it is entitled to judgment- by showing
that no genuine dispute exists as to any material fact
 Attempts to argue the merits of the case or to urge extralegal
considerations serve only to confuse.
 The showing may consist of pleadings filed by the opponent,
depositions, answers to interrogatories, admissions, and
affidavits made on personal knowledge
 Once the movant makes a properly supported motion, the
burden shifts to the nonmovant to demonstrate the existence of
a genuine dispute,
Summary Judgment –Burden Of proof
 "an adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading,
but the adverse party's response, by affidavits or as
otherwise provided in this rule, must set forth
specific facts showing that there is a genuine is
sue for trial“
 The nonmovant's failure to respond to a summary
judgment mo tion in conformity with the requirements
of Rule 56(e) does not au tomatically entitle the moving
party to judgment- summary judgment shall be entered
only "if appropriate."
Partial Summary Judgment
 Subsection (d) provides that when a summary
judgment motion is denied, the court is to determine,
"if practicable ... what material facts exist without
substantial controversy and what material facts are
actually and in good faith controverted." The court
must then make an order specifying which facts are not
in genuine dispute and which facts remain for trial. The
advisory committee notes explain that such a "partial
summary judgment" is "merely a pretrial adjudi cation
that certain issues shall be deemed established for the
trial of the case...
Summary Judgment
Hryniak v. Mauldin
 American investors, led by Fred Mauldin (the Mauldin

Group), placed their money in the hands of Canadian

“traders”.
 At the end of June 2001, the Mauldin Group wired

US$1.2 million
 A few months later, Tropos forwarded more than US$10

million to an offshore bank, and the money

disappeared.
Summary Judgment
 Mauldin Case
 The action underlying this motion for summary
judgment was one for civil fraud
 the tort of civil fraud has four elements, which must be
proven on a balance of probabilities: (1) a false
representation by the defendant; (2) some level of
knowledge of the falsehood of the representation on
the part of the defendant (whether knowledge or
recklessness); (3) the false representation caused the
plaintiff to act; (4) the plaintiff’s actions resulted in a
loss.
Summary Judgment
 Mauldin Case
 “[u]nquestionably, the Mauldin group was induced to
invest with Hryniak because of what Hryniak said to
Fred Mauldin” at the meeting of June 19, 2001 (at para.
158), and this was not disputed in the appellant’s
factum.
 The motion judge also rejected the defence that the
funds were stolen, noting Hryniak’s feeble efforts to
recover the funds, waiting some 15 months to report
the apparent theft of US$10.2 million.
Summary Judgment
 Mauldin
 Hryniak secured a US$76,000 loan for Fred Mauldin and conducted a
“test trade”, actions which, in the motion judge’s view, were
“undertaken . . . for the purpose of dissuading the Mauldin group from
demanding the return of its investment” (para. 113).
 The final requirement of civil fraud, loss, is clearly present. The
Mauldin Group invested US$1.2 million and, but for a small return of
US$9,600 in February 2002, lost its investment.
 The motion judge found no credible evidence to support Hryniak’s
claim that he was a legitimate trader, and the outcome was therefore
clear, so the motion judge concluded there was no issue requiring a
trial
Summary Judgment
 Mauldin Case
 Our civil justice system is premised upon the value that the process
of adjudication must be fair and just. However, undue process and
protracted trials, with unnecessary expense and delay, can prevent
the fair and just resolution of disputes.
 A shift in culture is required.
 The proportionality principle means that the best forum for resolving
a dispute is not always that with the most painstaking procedure
 Summary judgment motions provide an opportunity to simplify pre-
trial procedures and move the emphasis away from the conventional
trial
Summary Judgment
 The Ontario amendments changed the test for
summary judgment from asking whether the case
presents “a genuine issue for trial” to asking whether
there is a “genuine issue requiring a trial”. The new
rule, with its enhanced fact‑finding powers,
demonstrates that a trial is not the default procedure.
Summary Judgment
 RFA NO 216 –P of 2019
 Agreement to sell
 Possession of 30 kanal land delivered
 10 million paid
 Another agreement for rest of amount written and
agreed
 Dispute over other ancilliarymatters
Summary Judgment
 CR NO 1031 P /2023
 Possession through partition
 I kanal House
 Joint Statement
 Summary Judgment
 I only admitted heirship ,not the suit