Hryniak v. Mauldin Promotes Access to Justice Through Summary Judgments

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,

[49] 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,

[56] 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.

[57] 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…

[58] This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial…

[60] 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.
[emphasis added]

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,

[73] 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.

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Comments

  1. I read with great interest that our SCC has given a clear signal that the amendments to the Rulesof Court, at least in Ontario, are leading to a paradigm shift. The shift is occurring in the threshold or burden of proof required to prove one’s case. With this decision it just became a little easier to do so.

  2. Richard may be right that it is now easier to prove one’s case, but it could also have just become easier to lose your case. I guess it depends on how good your case is to begin with.

  3. Some caution is required when evaluating parties “winning” or “losing” their motion for summary judgment. We’re necessarily constrained by only looking at the decisions that are reported, and the venue in which these challenges are heard are dependent on the outcome.

    Osgoode Hall’s Janet Walker details this anomaly in the Queen’s Law Journal in discussing Combined Air,

    15 Two aspects of the development of the summary judgment jurisprudence have received little attention because they involve considerations that are more sociological than juridical.

    16 First, the procedure for appeals on summary judgment matters in Ontario is asymmetrical. Appeals from the granting of a summary judgment motion go directly to the Court of Appeal, but appeals from the denial of such a motion go to the Divisional Court, and only then with leave. This is because, generally speaking, granting a summary judgment motion will decide the rights of the parties with finality, and will be considered a final decision; denying a summary judgment motion will not have that affect, so it will be considered interlocutory. (See Cole v Hamilton (City) (2002), 60 OR (3d) 284, 29 CPC (5th) 49 (CA).) In theory, appeals from the denial of a summary judgment motion can reach the Court of Appeal if the result in the Divisional Court is appealed, but it is relatively rare for this to happen.

    17 As a result of this asymmetry, the court that makes the most authoritative pronouncements on the standard for granting summary judgment — the Court of Appeal — tends to do so in cases where the motions court has denied the complainant her day in court. The Court of Appeal rarely hears appeals in which the appellant claims to have been wrongly deprived of a prompt and efficient resolution by way of summary judgment. Of course, there is nothing scientific about this. The fact that a decision has been appealed is an indication of a losing party’s discontent with it, and not necessarily an indication that the decision was wrong. And, in any event, each case is decided on its own merits.

    18 Nevertheless, because most of the appeal decisions on the standard in summary judgment have involved concerns of a lack of procedural fairness rather than a lack of efficiency, this asymmetry could have a conservative influence on the overall approach recommended by the Court of Appeal. By way of analogy, if a manufacturer formulating a production policy were to ask only its sales department or its service department about the general level of customer satisfaction, the manufacturer would get a distorted impression — either that most customers are eager for quick delivery of new products or that most customers are concerned by flawed workmanship. On this analogy, Ontario’s approach to summary judgment has been developed in consultation with the service department and not with the sales department.

    19 Secondly, recent decades have witnessed the rise of alternative dispute resolution methods, bringing significantly more options for resolving matters before trial, and even more compelling reasons to do so in order to avoid the costs and delay of going to trial. The proportion of matters that reach trial has continued to fall throughout North America since the 1985 reform to the summary judgment rule — so much so that studies have examined the phenomenon of the “vanishing trial”. (Marc Galanter, “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts” (2004) 1:3 J Empirical Legal Studies 459; WK Winkler, “The Vanishing Trial” (2008) 27 Advocates’ Soc J 2.)

    20 Of course, there is a range of reasons why matters do or do not settle. Some of these relate to the extent of the parties’ knowledge of both sides of the case, and others involve cost-benefit considerations that may favour having the matter decided by a judge at trial rather than resolving it earlier. One might imagine that the greater the opportunities and incentives to resolve a matter before trial, the more likely it is that the matters that do proceed to trial will be particularly complex, or will be cases in which at least one party is steadfastly determined to have its day in court for reasons other than the creation of a full trial record. Such reasons could include the desire to have a public hearing, or have a judge make a formal pronouncement on the issues.

    21 As is true of the asymmetry of appeals, such considerations may do little to explain particular cases but may provide some insight into the current jurisprudence as a whole. If a growing proportion of the cases today that “should” settle but do not are those in which at least one party is simply not prepared to settle under any circumstances, this could help to explain why litigants who resist summary judgment are doing so all the more doggedly. To them, it is an article of faith that a full trial is “the essence of procedural justice and its deprivation the mark of procedural injustice”.(Irving Ungerman Ltd v Galanis (1991), 4 OR (3d) 545 at 550-51, 83 DLR (4th) 734 (CA) at para 20.)

    22 Overall, the challenges in deciding summary judgment motions have increased steadily over the years. If the conservative interpretation of the standard that emerged was ever appropriate, it gradually ceased to be so. Courts no longer needed to be warned to exercise caution — they needed to be encouraged to be decisive.

  4. Thanks for the post, and for providing a link to Janet Walker’s article; it is a very interesting read.

    Do you think courts will abandon their conservative approach and embrace Summary Judgment?

  5. Bruce,

    Hyrniak is a decision by the the highest court in the country. All courts in Ontario will have to “embrace” this approach because it is binding upon them. This principle has long been established, as enunciated by Chief Justice Laskin in Wolf v. The Queen,

    A provincial appellate court is not obliged, as a matter either of law or of practice, to follow a decision of the appellate court of another province unless it is persuaded that it should do so on its merits or for other independent reasons… The only required uniformity among provincial appellate courts is that which is the result of the decisions of this Court.

    An important reminder is that this case only strictly concerns the Rules as they relate to civil procedure in Ontario, though they will have persuasive value where similar changes have been made to the litigation process in other provinces.

    Under this new approach spelled out by the Court, summary motion judges still have considerable discretion to determine where a motion should be heard in the interests of justice. It would be erroneous to assume that Hyrniak necessarily will foster a flood gates of decisions at the summary judgment level. Justice Karakatsanis was quite clear that the discretion provided to these judges should still attract considerable deference,

    [81] In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law, should not be overturned, absent palpable and overriding error, Housen v. Nikolaisen, 2002 SCC 33 (CanLII), 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.

    [82] Similarly, the question of whether it is in the “interest of justice” for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference.

    [83] Provided that it is not against the “interest of justice”, a motion judge’s decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.

    [84] Of course, where the motion judge applies an incorrect principle of law, or errs with regard to a purely legal question, such as the elements that must be proved for the plaintiff to make out her cause of action, the decision will be reviewed on a correctness standard (Housen v. Nikolaisen, at para. 8).

  6. I’m a bit concerned about the traditional Appellate deference to trial court fact-finding where trial records can be attenuated by case management Judges imposing summary judgement. I’d be far more concerned about an exasperated case management Judge now than I would have been pre-Hryniak.

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