The Supreme Court of Canada released a decision this week in Hryniak v. Mauldin which revamps the judicial approach towards summary judgments in Ontario. The decision replaces the previous decision by the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, a special five-judge panel to hear five appeals over Rule 20 which then created a “full appreciation test” for summary judgment motions.
The reason for the detailed analysis of summary judgment motions in Ontario largely stems from changes to the Rules of Civil Procedure in 2010 which were intended to make civil litigation more affordable and accessible following the Osborne Report. The amendments to summary judgments Rule 20 are considered the most important because they allow courts to resolve disputes more expeditiously and cost effectively than a full blown trial.
The changes to the Rules accomplished this by expanding the powers of motion judges under Rule 20(2.1) by allowing them to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence. To accomplish this the judge may call oral evidence from the parties.
Prior to these changes, these functions were largely reserved in court for trial. Affidavit evidence under 20.02 is still used in accordance with subrule 39.01(4), but responding parties can no longer just rely on pleadings and must show a genuine issue for trial using their own affidavits or supporting evidence. Service of factums on summary judgment was increased from four days to seven, reflecting the more rigorous process intended under the new Rules.
The Court of Appeal in Combined Air was quite clear that the Rule 20 changes were never intended to dispose of trials altogether, and they expressed the concern that summary judgment motions would be used to create unnecessary delays and add wasted costs for matters which would ultimately be set down for trial regardless. The changes to Rule 20.06 provide cost sanctions for improper use of summary judgments, in responding to them, or for acting in bad faith for the purpose of delay.
However, the 2010 changes to the Rules were also accompanied by changes to Rule 1.04, which required the Rules to be interpreted liberally to achieve the most just, expeditious and least expensive determination of the issues. The new Rule 1.04 also included a proportionality clause, directing the court to apply the Rules in consideration to the importance and complexity of the issues, as well as the amounts in dispute. Justice Karakatsanis, writing for the unanimous Court, wrote that the Court of Appeal did not provide enough emphasis to the principles behind Rule 1.04 when determining summary judgments, and instead relied too heavily on the full appreciation test.
Justice Karakatsanis emphasized that summary judgment motions must be granted whenever there is no genuine issue requiring a trial. Rather than create categories or groups of such cases as was emerging post-Combined Air, she indicated that this should develop organically to allow our system to transform in accordance with the principles behind the changes. She stated,
 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
The proper analysis is whether a judge has confidence that a summary judgment motion can provide the necessary facts and apply the relevant legal principles, not whether the procedure is as exhaustive as a trial.
The expanded powers provided to a summary judgment judge under Rule 20 are also constrained under the Rules to circumstances where it would not be in the “interest of justice” for them to be exercised. However, this term is not defined in the Rules, and Justice Karakatsanis rejected the full appreciation approach employed by the Court of Appeal,
 While I agree that a motion judge must have an appreciation of the evidence necessary to make dispositive findings, such an appreciation is not only available at trial. Focussing on how much and what kind of evidence could be adduced at a trial, as opposed to whether a trial is “requir[ed]” as the Rule directs, is likely to lead to the bar being set too high. The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers — and the purpose of the amendments — would be frustrated.
 On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute…
 This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial…
 The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.
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. Justice Karakatsanis stated,
 A motion for summary judgment will not always be the most proportionate way to dispose of an action. For example, an early date may be available for a short trial, or the parties may be prepared to proceed with a summary trial. Counsel should always be mindful of the most proportionate procedure for their client and the case.
Given the lack of available motion and trial dates in Toronto courts, counsel are well aware that the options they can currently provide their clients are extremely limited, despite a concerted effort by our judicial system to promote expediency and efficiency.