In a much-anticipated decision released on January 23, 2014, Hryniak v Maudlin, 2014 SCC 7, the Supreme Court of Canada articulated a new approach to summary judgment under Rule 20 of Ontario's Rules of Civil Procedure (RRO 1990, Reg 194). The decision overrules authority from the Ontario Court of Appeal that largely restricted the availability of summary judgment to straightforward, document-driven cases. Instead, the Supreme Court characterized summary judgment as an alternative model for adjudication that is no less legitimate than a conventional trial, and should be more widely available to provide litigants with less expensive and more timely access to justice. Notably, the Supreme Court refused to specify the types of cases that will tend to be appropriate for summary judgment.
In 2010, Ontario implemented significant changes to Rule 20 in order to improve access to justice. Among other changes, the amendments gave judges on summary judgment motions the power to weigh evidence, make determinations of credibility and draw reasonable inferences from the evidence. For the purpose of exercising any of these powers, the new Rule also provides judges with discretion to direct that oral evidence be presented. Finally, the test for summary judgment was changed. Rather than being required to satisfy the court that a case raises "no genuine issue for trial", the amended Rule requires the motion judge to grant summary judgment as long as there is "no genuine issue requiring a trial".
When the Ontario Court of Appeal was first presented with a case under the new Rule, it recognized that the amendments were intended to make summary judgment "more accessible to litigants with a view to achieving cost savings and a more efficient resolution of disputes" (Combined Air Mechanical Services Inc v Flesch, 2011 ONCA 764, 108 OR (3d) 1 at para. 3). However, the Court of Appeal was reluctant to displace trial as a default process due to the "privileged position" it affords to the judge and its greater assurances of fairness in resolving disputes. As such, the Court of Appeal held that a judge may wield the new powers under Rule 20 only where the benefits of the trial process are not required to achieve a "full appreciation" of the evidence.
The Supreme Court's Decision
The Supreme Court deliberately charted a different path based on access to justice concerns. While the summary judgment process may not equal a trial in some respects, the Court recognized that the expense and delay of protracted trials can also prevent the fair and just resolution of disputes. Accordingly, proportionality and fairness considerations will dictate that in many cases the more limited procedures available through summary judgment are just and appropriate.
The key holdings from the Supreme Court's decision are as follows:
- A trial is no longer the default procedure. Summary judgment should be granted if 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 new fact-finding powers in Rule 20 are presumptively available. However, the interests of justice may dictate that these powers not be used if trial procedures are preferable in light of proportionality, timeliness and affordability considerations.
- The use of the power to hear oral evidence is more likely to be appropriate where the oral evidence required is limited. However, "there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure" (Hryniak, at para. 63).
- The decision to use the expanded fact-finding powers or to call oral evidence 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" on appeal (Hryniak, at para. 83).
The Supreme Court summarized its approach to summary judgment as follows:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment motion process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure... If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers… if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (Hryniak, at para. 66).
The Supreme Court also gave guidance on a number of procedural issues. In particular, the Court suggested that judicial management may be appropriate both before and after a summary judgment motion. At the outset, directions from the court may be sought to establish the appropriate schedule and procedures for the motion. After a failed or a partially successful summary judgment motion, the motion judge should seize herself of the matter as the trial judge, and may use the insight gained from hearing the summary judgment motion to craft a tailored "summary trial" procedure.
Not only does the Supreme Court of Canada's decision in Hryniak release the constraint placed on the summary judgment process by the prior decision of the Ontario Court of Appeal, it also appears likely to make summary judgment available in a much broader spectrum of cases than was previously the case. The benefit for many litigants will be cheaper and sometimes quicker access to justice, especially in light of recent initiatives from the Ontario Superior Court of Justice to reduce motion scheduling delays.
The full effects of Hryniak will have to be worked out in subsequent cases. For example, will the Courts permit summary judgment in complex commercial cases? Should summary judgment be available in complex cases prior to discovery? In any event, the significance of the decision is apparent from Justice Karakatsanis' comments that "ensuring access to justice is the greatest challenge to the rule of law today", and that addressing this challenge will require a "shift in culture" whereby judges will be required to "actively manage the legal process in line with the principle of proportionality" (Hryniak, at paras. 1, 28 and 32).