On January 23, 2014, the Supreme Court of Canada released its long-awaited decision in Hryniak v. Mauldin, 2014 SCC 7, a decision on Ontario’s Rule 20 relating to summary judgment.
The decision, written by Justice Karakatsanis, (who was in Hamilton in November at the Sopinka Luncheon), will likely go down as one of the most significant rulings from the Supreme Court of Canada in recent years.
The Court significantly amends and clarifies the applicable test in respect of summary judgment, but in doing so calls for a “culture shift” in the civil justice system.
The Supreme Court of Canada directs that a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that:
allows the Judge to make the necessary findings of fact;
allows the Judge to apply the law to the facts; and
is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
The Court says that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.
The Court observes that a full trial in civil matters has become largely illusory, because ordinary Canadians cannot afford it. The cost and delay associated with the traditional process means that a trial denies ordinary people the opportunity to have adjudication.
The Court introduces the proportionality principle holding that the best forum for resolving a dispute is not always that with the most painstaking procedure.
Introduction of the proportionality principle signals a move towards more liberal use of summary judgment motions in all cases, but particularly those involving relatively small dollar amounts in issue. In theory, it should be easier to obtain summary judgment in a case involving $100,000.00, as compared to a case involving $10,000,000.00.
In today’s world of litigation, it is often extremely difficult to efficiently prosecute small dollar cases through to trial without incurring costs approaching or exceeding the very amounts in issue. Such cases cry out for summary judgment as a proportionate, more expeditious and less expensive means to a just result, as compared to a full trial. Some will argue that this ruling sounds the death knell for trials in civil matters, other than in cases involving significant complexity and/or very large amounts in issue.
We may be moving towards a brand of “rough justice” required because of delays and costs which strangle the availability of perfect justice, particularly in a system that is already overburdened and lacking in judicial resources.
Achieving fair results in civil cases through the use of summary judgment will involve our Judges having to be particularly incisive cutting through the “smoke and mirrors” of multiple affidavits which are repetitive, filled with hyperbole and exaggeration, and pages and pages of monotonous, mind-numbing transcripts from examinations, all of which have apparently become standard on summary judgment motions.
Counsel seeking to obtain summary judgment on behalf of clients ought to be prepared to spend the time and effort required to assist the Judge by presenting a tight, focused record and a concise, straightforward factum that deals directly and pointedly with the most significant issues before the Court.
The Court also directs that the enhanced fact-finding powers granted to motion Judges in Rule 20.04(2.1) may be employed on a motion for summary judgment unless it is in the “interest of justice” for them to be exercised only at trial.
A Judge hearing a summary judgment motion should first determine if there is a genuine issue requiring trial based on the evidence before him/her without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, he/she should then determine if the need for a trial can be avoided by using the new powers. Those powers can be used provided that their use is not against the interest of justice.
Further, the Rules allow the Judge to use the insight he/she gained from hearing the summary judgment motion to craft a trial procedure that will resolve the dispute in a way that is sensitive to the complexity and importance of the issue, the amount involved and the effort expended on the failed motion.
In a very bold ruling, the Court directs that where a Judge dismisses a motion for summary judgment, he/she should seize herself of the matter as the trial Judge in the absence of “compelling reasons to the contrary”.
This ruling will require a significant change in the use of judicial resources and in scheduling.
The Court recognized that such a ruling would create administrative problems but said that this dramatic change is required in the circumstances.
Every pending summary judgment motion and every summary judgment motion brought in the future will present an administrative challenge for our judicial system.
Judges hearing summary judgment motions are now required to first determine if there is a genuine issue requiring trial based on the written record. If there appears to be a genuine issue requiring a trial, the Judge then must determine if the need for a full trial can be avoided by using the new powers in Rule 20.04(2.1).
A Judge may order that oral evidence be presented by one or more of the parties, pursuant to Rule 20.04(2.2). In many cases, that will involve an adjournment of the motion for summary judgment while witnesses are arranged and logistical challenges are addressed. Often, motions are argued in courtrooms that do not have facilities for oral evidence to be presented. Typically, court reporters are not present for argument of summary judgment motions, but will be required where oral evidence is going to be presented.
If the Judge hearing the motion determines that there is a genuine issue requiring a trial, the Judge is required to seize himself/herself of the matter as the trial Judge absent compelling reasons to the contrary. That will then create further scheduling challenges.
This might mean that a Judge could be seized of multiple matters as the trial Judge, having had the experience of having to deal with multiple motions for summary judgment in different matters and concluding that trial is required.
Senior Regional and Local Administrative Judges will have to develop some system and process for tracking, managing and hearing of summary judgment motions in order to be able to comply with the direction from the Supreme Court of Canada.
It seems clear that the ruling in Hryniak will result in more and more summary judgment motions being brought. Most, if not all, will require a hearing longer than one hour, which locally will mean being placed on a long motion list for a “week of” trial sittings. It might not be unusual in the future that the number of summary judgment motions on the local “week of” civil trial list exceed the number of full trials.
Counsel and Judges are encouraged to embrace the “culture shift” that the Supreme Court of Canada calls for. Unmeritorious claims and defences need to be weeded out in a proportionate, more expeditious and less expensive fashion, so that judicial resources can be properly allocated to adjudicating the disputes that involve real, genuine issues to be decided.