On January 24th, 2014, the Supreme Court released its much anticipated decision in Hryniak v Mauldin. In dismissing the appeal, the Supreme Court provided guidance on the interpretation of Ontario’s recently amended summary judgment rule (Rule 20 of the Ontario Rules of Civil Procedure) and introduced a new test for summary judgment. In short, this decision will make it easier for litigants to obtain a summary judgment disposition without going to trial.
Much of the unanimous decision, written by Justice Karakatsanis, consists of commentary regarding the need for a culture shift in the Canadian legal landscape that places a premium on efficiency, affordability, and access to justice. The Supreme Court used this decision as an opportunity to reflect on the way in which summary judgment motions can be used as a tool to facilitate this culture shift. In so doing, the Supreme Court introduced significant changes to the current summary judgment regime. Some implications of this landmark decision are highlighted below.
Lower Bar for Summary Judgment Motions
The Supreme Court held that the Ontario Court of Appeal's "full appreciation test" set the summary judgment bar too high. The “full appreciation test” held that the motion judge could only make a determination if she could obtain a full appreciation of the evidence needed to make a dispositive finding by way of summary judgment. However, using proportionality as a guiding principle, the Supreme Court found that full appreciation is unnecessary: a fair trial and a just determination of the issues are possible without the full appreciation of the evidence only possible in a trial. The focus of the motion judge should not be on the features of a conventional trial, but whether that trial is required, taking into account considerations of proportionality, timeliness, and cost. For many litigants, a full trial is not practical and will not meet their needs.
The decision holds that evidence on a summary judgment motion does not have to be equivalent to the evidence that would be adduced at trial. Rather, there must only be enough evidence for the motion judge to be confident she can resolve the dispute fairly.
Motion Judge to Take a More Active Role
The Supreme Court underscored the need for the motion judge to take into account questions of efficiency, cost, and speed of the proceedings when determining if summary judgment is appropriate.
Further, the Supreme Court suggested that, in order to mitigate the risk of summary judgment motions being used inappropriately – resulting in wasted time and resources, raised costs, and generally undermining access to justice – judges should, where possible, seize themselves of the proceedings. This would allow the motion judge to use insights gained from hearing the summary judgment motion, if dismissed, at trial. This same suggestion was advanced in a recent article by Peter Wells and Adrienne Boudreau, published before the Supreme Court decision was released, in the Advocates' Quarterly, titled It Was Déjà Vu all Over Again.
The Supreme Court notes that lawyers, too, must facilitate access to justice by using the summary judgment procedure
appropriately and by taking into account their clients' means and the most effective way to achieve a just result for them.
Use of Oral Evidence
Agreeing with the Court of Appeal, the Supreme Court reiterated the fact that there may be cases in which it is appropriate to use extensive oral evidence on summary judgment motions. Oral evidence may be heard in the interest of avoiding a longer, more complex trial.
Summary Judgment Road Map
Finally, The Supreme Court set out the approach to be taken by the motion judge in determining whether to grant summary judgment. The judge will first determine if there is a genuine issue requiring trial without using the new fact-finding powers set out in Rules 20.04(2.1) and 20.04(2.2). Then, if there appears to be a genuine issue requiring trial, the motion judge should determine if a trial can be avoided by, using those fact finding powers, including weighing evidence, evaluating credibility, drawing inferences, and hearing oral evidence. In line with its efforts to encourage more reliance on summary judgment motions, the Supreme Court noted that the use of these fact- finding powers, which is discretionary, is presumptive rather than exceptional.
Higher Bar for Appeals
Finally, in further effort to encourage the use of summary judgment motions, the Supreme Court raised the bar for appeals from summary judgment decisions, emphasizing deference towards the motion judge's fact-finding and determination of whether there is a genuine issue requiring a trial.
Unless the motion judge came to a decision that is so clearly wrong as to result in injustice, the Court of Appeal should not disturb the motion judge's decision that a trial is not required.
The Supreme Court's decision signals a considerable change in how lawyers and judges are to approach summary judgment motions, both in Ontario and throughout the rest of Canada. The decision lowers the test that a moving party must meet to succeed on a summary judgment motion, and will make appealing a summary judgment decision more difficult. It remains to be seen, however, if this landmark decision will in fact bring about the culture shift for which the Supreme Court calls.