The Supreme Court of Canada’s Decision in Hryniak: Courts Must Change

Last week, the Supreme Court of Canada released an important decision explaining when summary judgment rules can be used to resolve civil litigation disputes. Omar Ha-Redeye posted about the decision last week.

Some Supreme Court decisions are targeted at the litigants in a case. Other times, Members of Parliament who have to write new laws. Although the decision has messages for everyone, I think the Supreme Court’s decision in Hryniak is aimed in many ways at Ontario’s court system itself.

The Supreme Court of Canada extensively discussed “tools to maximize the efficiency of a summary judgment motion,” concluding that a superior court has “inherent jurisdiction to permit a motion judge to be involved early in the life of a motion, in order to control the size of the record, and to remain active in the event the motion does not resolve the entire action.” The Court cautioned that “motion judges must also be cautious not to impose administrative measures that add an unnecessary layer of cost.” The Supreme Court of Canada concluded that “the courts should be prepared to change their practices in order to facilitate access to justice.”

At present, most clients with litigation disputes in Toronto have to pay their lawyer hundreds of dollars to simply schedule a motion for summary judgment. This can only be done by attending motion scheduling court, a process that can take an hour or more “even though the actual time before the presiding judge can be as short as a couple of minutes” (see p. 3 of a recent OBA submission). Likewise, even though the Supreme Court referred approvingly to a judge getting involved “early in the life of a motion,” Ontario’s court system does not contemplate this kind of case management in most cases.

There are many things that need to be fixed in Ontario’s court system, including computerized scheduling and electronic filing of court documents. The court’s desire to reinvent itself will be one of the most important factors to determine whether the Supreme Court of Canada’s goal of ensuring access to justice is achieved.