As explained in a recent Osler Update, the Supreme Court of Canada’s decision in Hryniak v. Mauldin increases the availability and flexibility of summary judgment motions in Ontario while also increasing the probability that a successful summary judgment motion will finally resolve the dispute. Although Hryniak was not a class action, the decision will undoubtedly influence strategy and outcomes in ongoing and future class actions.
At a minimum, summary judgment will likely be used more frequently in Ontario class proceedings. Other implications may include:
- Novel Claims Now More Suitable for Summary Judgment – Historically, cases turning on novel or unsettled legal issues have been weaker candidates for summary judgment. For example, in Allen v. Aspen Group Resources Corporation, Justice Strathy (as he then was) dismissed a defendant’s summary judgment motion in a certified class action, stating: “As a general rule, courts have been reluctant to determine novel or unsettled questions of law on summary judgment without a full factual record.” This general rule would appear to have been superseded by Hryniak. Now, a motion judge must consider whether he or she can make the necessary findings of fact and apply the law – novel or unsettled though it may be – to those facts on summary judgment. For defendants facing class claims based on novel legal theories, summary judgment now appears to be a more viable option for disposing of the claims without the time and expense of a full common issues trial.
- The Relative Benefits of Contesting Certification Continue to Diminish – The Supreme Court’s decisions in October 2013 emphasizing the low bar for certification and recent Ontario decisions criticizing the effort expended on certification motions have arguably diminished the potential upside of vigorously opposing certification. Where a defendant’s strategic objective is to dispose of the case quickly, Hryniak militates in favour of seeking summary judgment, before or after certification, rather than mounting a vigorous, expensive and, in most cases, low-probability effort to defeat certification.
- “Access to Justice” Considerations May Encourage Plaintiffs’ Summary Judgment Motions – In Hryniak, the Supreme Court emphasized access to justice considerations when increasing the availability of summary judgment, stating “summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial.” Plaintiffs may use the access to justice principle to support arguments that common issues can and should be summarily decided in favour of the class to reduce the time and expense of proceeding to a common issues trial.
- Not Limited to Ontario – The decision’s implications for class proceedings are not necessarily limited to proceedings in Ontario. Although the decision concerned Ontario’s summary judgment rule (Rule 20), which was significantly amended in 2010, the Court stated: “While, Ontario’s Rule 20 in some ways goes further than other rules throughout the country, the values and principles underlying its interpretation are of general application.”