Last week the Supreme Court of Canada handed down its unanimous decision in Hryniak v. Mauldin
(and its companion appeal in Bruno Appliance and Furniture, Inc. v. Hryniak
) in which it weighed in on the new summary judgment procedure in Ontario. Under the rule, trial courts can summarily rule on matters that would otherwise have to go to full trial. It was introduced following recommendations by former Associate Chief Justice of Ontario Coulter Osborne, who found that case law had developed in such a way as to deter litigants from using the summary judgment procedure in place at the time — hence its limited effectiveness. In Hryniak
, the Court overturned the test used by the Ontario Court of Appeal to determine whether full appreciation of evidence that could be gained only by way of a full trial. It ruled that summary judgment motions must be granted whenever there is no genuine issue requiring a trial.
The Canadian Bar Association was an intervener
in the decision and advocated for “a modern approach to summary judgment” that allows for “flexibility and creativity.” It made the case that the role of judges is “to assert control at all stages of the litigation process to ensure
proportionality and the overriding need for justice to be dispensed in a timely and cost-effective manner “ – something the Court of Appeal, in the CBA’s view, unduly restricted.
Over at Slaw, Omar Ha Redeye
breaks down the decision and what it means for motion judges:Before a summary judgment judge should use the expanded powers under Rule 20, they should first determine whether there is a genuine issue requiring trial based on the evidence which is already before them. If there is a genuine issue, only then should they consider using the expanded powers to see whether it can be resolved at the summary judgment stage, and if it is in the interests of justice to have a trial instead.Justice Karakatsanis addressed the concern of rising costs due to use of Rule 20 by pointing to Rule 20.05 and the ability of a summary judgment judge seizing themselves of the matter and presiding over the trial as well if scheduling allows for it. Any insight gained from the summary judgment motion can be used to manage a trial to resolve the case in a manner which could help focus a trial on the complexities and importance of the case.In developing the new Rules, Ontario’s Civil Rules Committee did not adopt the Osborne Report recommendation to make available a “mini-trial” as an alternative to dismissing the motion, or a rule for a summary trial. The change in direction under Hryniak should allow the new Rule 20 summary judgment mechanism more available to the courts as a tool for access to justice, but does not dispose of the trial mechanism altogether for accomplishing this goal as well.Lee Akazaki
looks at the big picture:There was a clear departure from the Court of Appeal for Ontario’s 2011 decision in the decision in Combined Air Mechanical Services v. Flesch, whose “full appreciation” test has been seen in some quarters as an attempt to preserve the sanctity of the civil trial and a setback to the efficacy of the summary procedure. The judgment of Justice Karakatsanis is steeped in the language of access to justice as the driving force for opening up summary judgment as a means for parties to have their civil disputes adjudicated without the delay and expense of trials. There will be a lot said about the “#A2J” policy behind the decision, and rightly so.
Akazaki remains skeptical, however, how the decision will play out in real life:It is one thing to grant judgment to Mr. Plaintiff because Mr. Defendant did not rebut a sworn statement by Mr. Plaintiff. It is another matter altogether to grant judgment by having to find Mr. Defendant to have been a thief. Talk to judges and you will hear that it is much easier to apply the law than it is to stand in judgment over parties regarding facts. The possibility of new or different evidence coming out a trial has and remains the psychological hurdle which makes summary judgment difficult for a judge to grant. The Supreme Court’s decision in Hryniak has not removed this mental barrier. From a human factors perspective on the judge’s occupational role, a stricter contextual reading of the rule would likely achieve the access to justice goals more effectively than a reading which grafts a fact-finding role.
Antonin I. Pribetic at Trial Warrior
raises similar concerns (the entire post is worth the read). But he takes issue with Justice Karakatsanis’ comments with respect to private arbitration as an alternative to a slow judicial process: In some circles, private arbitration is increasingly seen as an alternative to a slow judicial process. But private arbitration is not the solution since, without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of the common law undermined.I’m not sure where Justice Karakatsanis is coming from, but as far as I know, parties choose private arbitration for a variety of reasons, mostly for the operative word “private”. Some litigants do not relish having their disputes being publicized. Others are bound by contractual dispute resolution clauses that are entered into, for the most part, consensually. Some parties choose private arbitration because it is faster, more efficient, and relatively cost-effective.Ultimately, it’s all about choice. Conversely, the civil justice system is rarely about choice, or, more accurately, it’s about asymmetrical choice: the plaintiff sues the defendant, not the other way around. The defendant has no choice but to defend the action in the courts.