The Cultural Shift Observed Post-Hryniak

The SCC’s decision in Hryniak v. Mauldin last year was expected to foster a cultural shift on the effective use of judicial resources, in particular in areas like Toronto where courts are cluttered with arguably needless motions. Justice Karakatsanis stated,

[2] Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system… [3] Summary judgment motions provide one such opportunity…

[5] To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

This assumption has not been empirically tested or assessed to my knowledge, until now.
Ted Tjaden and Matthew Karabus recently released an article in The Advocates’ Quarterly, The Impact of Hryniak v Maudlin on Summary Judgments in Canada One Year Later, which summarizes the 460 decisions citing Hyrniak. The authors conclude that Hyrniak may actually be having its intended effect,
…a culture shift is indeed underway with close to 75% of summary judgments motions in Ontario being granted or upheld, with the impact outside of Ontario being more diffuse due in part to differences to summary disposition regimes in these other jurisdictions.
Out of the 217 decisions examined in Ontario, “partial summary judgment was granted or confirmed in 21 decisions (9.7%) and full summary judgment was granted or confirmed in 140 decisions (64.5%), resulting in 74.2% of Ontario decisions in the past year allowing full or partial summary judgment. In 56 decisions (25.8%), the court held that the matter was not appropriate for summary judgment due to genuine issues requiring a trial.”
The authors compare this to studies on the the pre-Hyrniak regime on summary judgments, which show that combined success rates on summary judgement motions between 2009-2012 was only in the range of about 65%, suggesting an increase by about 10%. A useful summary is contained within the article about the Ontario motions where summary judgement was granted, and those that were not.
Where summary judgement was refused in Ontario, judges have been slower to remain seized or case manage the matters,
In the past year in the Ontario Superior Court in the 69 decisions in which a motion for summary judgment was dismissed (due to there being genuine issues) or only partial summary judgment was granted, the motions judge did not address whether he or she would be seized of the remaining issues in 31 of those decisions (45%) or decided to not be seized in 10 decisions (15%) (most often due to the judge being “on circuit” or not having gained any particular knowledge of the matter), with trial judges being seized in only 28 decisions (40%). Likewise, some form of case management or directions was given in only 29 decisions (42%) or was decided as being unnecessary in 4 decisions (6%), meaning that in 36 decisions (52%), the motions judge was silent on case-managing the remaining issues or providing directions to counsel and the litigants.
The impact of Hryniak outside of Ontario is difficult to assess given the differences in the Rules of Civil Procedure. The provinces outside of Ontario who cite Hryniak the most are Alberta and B.C.
This detailed review of how Hyrniak has been extensively employed by courts over one short year is a thorough and exhaustive revelation of where civil litigation may go in the years to come. If civil trials are already scarce today, they may become scarcer still as the courts take the initiative to ensure only those matters which need a trial genuinely hold one.

Comments

  1. David Sanders, Camberwell House Litigation

    With all due – and considerable — respect to the excellent and admirable work of Messrs. Karabus and Tjaden I’m not at all convinced that a 10% increase constitutes a culture shift. I’m not a statistician but 10% seems to be quite possibly a normal rate of variation over a given period of time.

    Even assuming that the 65% to 75% rise [a ~15% increase from previous rate] is entirely attributable to Hryniak we are still left short of where we should be. The SCC was quite clear that Hryniak wasn’t just there to move the incidences of early resolutions up a wee bit, it was make courts more dynamic about removing cases or issues from the system that had no business being there. (And, let’s be candid: there isn’t a litigation lawyer reading this that doesn’t have at least one defending file where they are baffled at how the court is letting transparently baseless nonsense continue.)

    Hryniak was unquestionably a specific, direct rejection of the older, “oh, that’s for trial, because absent cases of startling, nay, unavoidable certainty we will just move them down the road to the next stage” line of cases that were far too representative of far too many r.20 motions over the past thirty or so years. The SCC’s characterization of the use of summary judgment as a “highly restricted tool” was spot-on.

    Indeed, I’d argue that even the previous ~65% success rate is deceiving, given that that previous r.20 practice of only the clearest of the clear cases had succeeding. (Combined Air was an excellent example of how r.20 has been neutered each time it has been upgunned over the decades: a promising start, then more and more and more decisions that expanded the list of situations in which summary judgment wasn’t to be granted; Karabus and Tjaden very accurately cite this tendency as “interpretive erosion”.) Litigation counsel very soon learned to avoid recommending a r.20 motion to a client except in the most exceptionally clear of situations because of that judicial reluctance to seize the nettle early.

    The ~65% of “wins” didn’t, therefore, and in my opinion, mean that, in a situation where a summary judgment might be granted you will receive one 65% of the time. It meant that ~65% was the success rate of that far more limited number of cases where (a) only the best cases were brought forward, (b) in situations where counsel was aggressive and risk-oriented enough to bring them, and (c) where “b” had a client willing or able to take an expensive risk on a proposition that will fail 1 time out of 3.

    Permit me an analogy regarding the pre-Hryniak reality. Passing rates for the notoriously tough US Army Ranger School are usually at about 45%. This does not mean that 45 out of a 100 US soldiers are good enough to be Rangers. It means that where one takes all soldiers, THEN one weeds out those not fit enough to be in the infantry, THEN one takes out those who prefer specialist occupations, THEN one weeds out those groundpounders who do not want the additional challenge and risk of Ranger training THEN one weeds out those whose COs deny their request to go THEN one weeds out those who try but can’t make it through the application / admission process, THEN, and only then, do 45 out of a 100 succeed. Would you characterize it as a “culture shift” if that pass rate rose to 51.75% [45 x 1.15]? I don’t.

  2. David Sanders, Camberwell House Litigation

    There is one startling gap in the use and effectiveness of Hryniak: the fact that while it is very much a summary judgment case it is not limited to summary judgment. The “principles are important” when considering other matters. “Procedural orders that increase the complexity and expense of litigation reduce access to justice in a very real way.” Hryniak, “paved the way for the introduction of new methods to improve access to civil justice”. [See Hryniak v. Mauldin, 2014 SCC 7 (CanLII), ¶ 3, Glasjam v. Freedman, 2014 ONSC 3878 (CanLII), ¶ 78, and Gao v. Ontario WSIB, 2014 ONSC 6497 (CanLII), ¶ 5.]

    Hryniak, properly and usefully applied, could and should be applied to r.21 motions. The current practice is to strike “only in the clearest of cases” [see for example South Holly Holdings Ltd v. Toronto-Dominion Bank] where it is “plain and obvious”, permitting through any case that has even a chance that it might succeed [Hunt v.Carey ]. That is, very arguably, a pre-Hryniak summary judgment test wearing different words.

    Hryniak, properly and usefully applied, could and should be applied to appeals. There are many baseless appeals winding their way through the courts. Part of that is due to the long lead times to hearings, (here in London, for example, there are only two Divisional Court sittings per year): litigants with groundless appeals make them anyway to buy time. Why?

    Part of the reason is the long lead times for motions to quash: here in London any contested motion longer than half an hour must go to a special appointment at least three months down the line. Part of the reason is legislative gaps: the Residential Tenancies Act, for example, permits appeal as of right rather than requiring leave, so tenants know that the mere filing of even the most ludicrous appeal will keep them in the unit for months and months longer. [Matlow J. had some cutting words about that in D’Amico v. Hitti, as have some other judges.] And part of the reason is the usual near-pointlessness of bringing a motion to quash, given the very high hurdle of the test: the requirement for a successful motion to quash is that the appeal be “manifestly devoid of merit” [Lesyork Holdings v. Munden Acres]. Currently, appellate courts in Ontario seem to accept across the board that the only way to determine that an appeal is “manifestly devoid of merit” is to have the appeal itself heard, which rather defeats the purpose of a motion to quash in a burst of circular reasoning: bad appeals should be quashed before a full hearing, but only a full hearing can determine whether it is a bad appeal.

    The reader will note that “manifestly devoid of merit” is the direct, overt language of how the motions courts had, pre-Hryniak, been acting in practice on r.20. If the SCC has now so clearly said that early decisions getting rid of cases on a test lower than being “manifestly devoid of merit” is appropriate for summary judgment, then why not for appeals? I’d argue that such a loosening of the test is even more appropriate for motions to quash in appeals than for summary judgment. In a r.20 motion the parties stand before the judge without anyone having yet established who is wrong and who is right. By way of contrast, in appeals the hearing has already taken place and the respondent in the appeal has already been successful in the court below. The winner having “expended considerable time and money” to obtain judgment now faces an appellant who can demand that the matter be reconsidered; this forces a vindicated respondent to expend even time and money – and delay the receipt of funds or possession — to “win again” after a judge has already said that he is correct. The appellate courts (in theory) accept that this unfairness-by-system [what the Americans often call “the process IS the punishment”] shouldn’t be accepted when security for costs of an appeal is on the table, [see for example Unique Labeling v. GCAN Insurance], so why not use Hryniak as the vehicle by which that a just early resolution can be made on the appeal itself? We will no longer need a full hearing on the merits to decide whether we need a full hearing on the merits.