In Stever v. Rainbow International Carpet Dyeing & Cleaning Inc., 2013 ONSC 4054 (S.C.J.), the defendant brought a summary judgment motion prior to discoveries, alleging there was no issue requiring a trial as the limitation period had expired. Justice Morgan held that summary judgment motions typically proceed after discoveries are complete, or with affidavit evidence and cross-examinations that "go a long way to replicating what will be produced at discoveries." Justice Morgan adjourned the summary judgment until after discoveries had been completed.
Stever is in line with the Court of Appeal's decision in Combined Air, which held:
58 Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial. As we point out below, at para. 68, counsel have an obligation to ensure that they are adopting an appropriate litigation strategy. A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.
In many cases, especially where there is an issue of discoverability, summary judgment is likely not appropriate until discoveries are complete.
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