Motion to Dismiss vs. Motion for Summary Judgment in Ontario — What’s the Difference?

In Ontario civil litigation, not every case has to go to trial. The Rules of Civil Procedure provide mechanisms to end a weak or hopeless claim early, saving time, cost, and judicial resources.

Two of the most common — and often confused — tools are the Motion to Dismiss and the Motion for Summary Judgment.

Both can result in a case being thrown out before trial, but they differ fundamentally in purpose, timing, and legal test.

This guide clarifies the difference, explains when each motion is appropriate, and explores how Ontario courts apply them under the modern litigation framework.

1️.What Is a Motion to Dismiss?

A motion to dismiss asks the court to strike out or terminate a proceeding because it is defective in law or procedurally improper — for example, if the claim discloses no reasonable cause of action or is an abuse of process.

It does not usually involve factual disputes or evidence. Instead, it assumes the facts pleaded are true and asks whether, even if true, they could possibly support a legal claim.

1. Legal Authority

• Rule 21.01(1)(b) — allows dismissal where the pleading discloses no reasonable cause of action or defence.
• Rule 25.11 — permits striking a pleading that is frivolous, vexatious, or an abuse of process.

1. Key Characteristics

• Focuses on pleadings, not evidence;
• Decided on the face of the statement of claim or defence;
• Used when a case fails at the legal threshold;
• Decided before discovery or trial.

Case Example:
Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 — the Supreme Court of Canada confirmed that a claim will only be struck if it is “plain and obvious that it cannot succeed,” assuming all facts pleaded are true.

2️. What Is a Motion for Summary Judgment?

A motion for summary judgment seeks to dispose of a case (or part of it) on the evidence, where there is no genuine issue requiring a trial. Unlike a motion to dismiss, this procedure engages the factual record — affidavits, transcripts, exhibits, and other proof.

1. Legal Authority

• Rule 20.04(2)(a) — the court shall grant summary judgment if there is no genuine issue requiring a trial.
• Rule 20.04(2.1) — empowers judges to weigh evidence, evaluate credibility, and draw reasonable inferences.

1. Key Characteristics

• Based on evidence, not just pleadings;
• Requires affidavit and documentary record;
• Available to both plaintiffs and defendants;
• May result in judgment, partial judgment, or dismissal.

Case Example:
Hryniak v. Mauldin, 2014 SCC 7 — a landmark decision that revolutionized Rule 20, holding that summary judgment should be used whenever it can deliver a “fair and just determination on the merits without a full trial.”

3️. Comparing the Two Motions

4️. When to Use Each Motion

1. Motion to Dismiss — Best For:

• Claims with fatal legal defects (e.g., no cause of action);
• Duplicative or abusive proceedings;
• Matters barred by statute (e.g., Limitations Act, Res Judicata).

Example: A plaintiff sues for “defamation” but pleads no publication, no words, and no damages — this can be dismissed under Rule 21 before discovery.

1. Motion for Summary Judgment — Best For:

• Claims where facts are clear and undisputed;
• Cases supported by documents, contracts, or affidavits;
• Debt claims, breach of contract, or simple negligence disputes.

Example: A supplier sues for unpaid invoices; the defendant admits delivery but disputes quantum. The plaintiff may win full judgment via summary judgment motion.

5️. Strategic Considerations for Lawyers and Clients

1. Evidentiary Burden

In a motion to dismiss, the moving party must show the claim cannot possibly succeed in law.
In a motion for summary judgment, the moving party must show no genuine issue requiring a trial — but the responding party must then produce evidence showing a real dispute exists.

1. Cost and Efficiency

• Motions to dismiss are generally faster and cheaper;
• Summary judgment motions require fuller records and can approach mini-trials in cost;
• However, successful summary judgment can save the cost of a full trial.

1. Risk Management

• A failed motion to dismiss may lead to amended pleadings;
• A failed summary judgment motion may lead to adverse cost orders under Rule 20.06.

6️. Hybrid or Combined Motions

Sometimes parties bring combined motions — for example, moving under Rules 20, 21, and 25 simultaneously.

Courts have discretion to treat the motion under whichever rule is most appropriate based on the record.

Case Example:
Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 — the Court of Appeal confirmed that judges may blend procedural rules to achieve a fair, efficient determination if the evidentiary record permits.

7️. How Judges Apply the “No Genuine Issue” Test

Post-Hryniak, judges are encouraged to use the “full appreciation” test — asking whether the evidence before them allows a fair and just determination without live testimony.

Case Example:
Butera v. Chown, Cairns LLP, 2017 ONCA 783 — reaffirmed that courts can decide credibility on paper when supported by sufficient evidence and context.

Judges may:

• Weigh competing affidavits;
• Draw inferences from documents;
• Order limited oral evidence (“mini-hearings”) if necessary under Rule 20.04(2.2).

8️. Costs Consequences

As with all motions, costs follow the result under Rule 57.01.However, because dismissal or summary judgment can end litigation early, the winning party often recovers substantial or even full indemnity costs, especially if the opposing side acted unreasonably.

Case Example:
Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 — a successful summary judgment motion resulted in significant cost recovery, with the court emphasizing proportionality and efficiency.

9️. Appeals

A decision on either motion may be appealed to the Divisional Court or Court of Appeal depending on monetary value and procedural context. Appellate courts defer to motion judges on factual findings, intervening only for errors of law or principle.

Case Example:
Drummond v. Cadillac Fairview Corp. Ltd., 2023 ONCA 56 — the Court of Appeal reiterated that summary judgment should not be overturned merely because the appellate court might have weighed the evidence differently.

10️. Choosing the Right Motion: Practical Tips

• Assess early: If the issue is legal only → Rule 21.
  If it’s factual but uncontested → Rule 20.
• Build your record: For summary judgment, affidavits, contracts, and admissions matter.
• Use strategically: A well-timed motion can prompt settlement or narrow trial issues.
• Be cautious: Frivolous or premature motions can trigger adverse cost sanctions.

Conclusion: Efficiency Without Sacrificing Fairness

Both motions to dismiss and summary judgment motions reflect Ontario’s evolving civil justice philosophy — streamlined, proportional, and evidence-driven litigation. When used appropriately, they allow parties to avoid lengthy trials and achieve resolution faster and more cost-effectively.

At ME Law Professional Corporation, our litigation team is experienced in designing early resolution strategies, including Rule 20 and Rule 21 motions in commercial, contract, and civil disputes.
We ensure motions are used strategically — not reactively — to secure results that are both efficient and defensible.

⚖️ Disclaimer

This publication is for general informational purposes only and does not constitute legal advice.
The principles summarized reflect Ontario law as of 2025, including Rule 20, Rule 21, and Rule 25 jurisprudence under Hryniak v. Mauldin and its progeny.

Outcomes depend on the specific facts and evidence of each case.

If you are considering moving to dismiss or for summary judgment in Ontario, contact the civil litigation lawyers at ME Law Professional Corporation.

We can help you assess whether your case meets the threshold for early dismissal — or how to defend against one effectively.

📞 Call (416) 923-0003 or contact us online to schedule a consultation.