On June 18, 2014, the Court of Appeal for Ontario released its decision dismissing the plaintiff's appeal in Harris v. Leikin Group Inc., 2014 ONCA 479 ("Leikin"). The decision under appeal followed a hybrid trial that made extensive use of work product from two earlier summary judgment motions. Leikin is one of the first Court of Appeal decisions to interpret Ontario's summary judgment rule in light of the Supreme Court of Canada's recent decision in Hryniak v. Mauldin, 2014 SCC 7 ("Hryniak"), which increased the availability of summary judgment in Ontario and specifically endorsed the use of hybrid trials to salvage resources spent on failed summary judgment motions.


A primary issue in Leikin was whether the trial judge-who also served as the motions judge on the earlier summary judgment motions-erred in adopting a hybrid-form of trial. After dismissing the summary judgment motions, the judge issued trial management directions providing for a hybrid trial in which the evidence filed on the motions was to be preserved and supplemented with further evidence at trial. In particular, the trial judge ordered that affidavits filed on the motions would serve as examinations-in-chief, and additional examinations and cross-examinations would be time-limited. The trial proceeded in accordance with these directions, and following the conclusion of the trial, the trial judge dismissed the plaintiffs' claims in their entirety. The plaintiffs appealed. After the appeal was perfected but before it was heard, the Supreme Court of Canada released its decision in Hryniak regarding the use of summary judgment and hybrid trials.

The Appeal

On appeal, the appellants argued that the trial judge erred in directing a hybrid trial because it robbed them of the ability to control the trial narrative. This ground of appeal was rejected at the outset on the basis that it amounted to a collateral attack on the trial management directions. The Court held that if the appellants wanted to challenge the directions for trial, the time to do that was when the directions were issued and not on this appeal. Accordingly, the appellants had no right of appeal from the trial management order directing a hybrid trial.

However, since the correctness of the trial management order was argued fully on appeal, the Court offered the following observations. First, the Court found that the specific terms of the trial judge's directions fell squarely within the language of the summary judgment rule (Rule 20.05), which provides, among other things, that any oral examination of a witness at trial may be subject to a time limit and that the evidence of a witness may be given in whole or in part by affidavit.

Second, the Court found that both the letter and the spirit of the trial judge's directions fell squarely within what the Supreme Court expressly contemplated in Hryniak at paras. 76-77:

Rules 20.05(2)(a) through (p). allow the judge to use the insight she gained from hearing the summary judgment motion to craft a trial procedure that will resolve the dispute in a way that is sensitive to the complexity and importance of the issue, the amount involved in the case, and the effort expended on the failed motion.

Finally, the Court found that the trial judge in Leikin did exactly what Hryniak instructs judges to do; that is, "salvage the resources that [go] into the summary judgment motion." Having found that the trial judge afforded the parties considerable latitude in the presentation of their case, the Court was not persuaded by the appellants' argument that the trial was "simply a reconfiguration of the dismissed motion." Accordingly, the appellants were not robbed of the ability to control the trial narrative and the trial judge made no error in directing a hybrid trial. The appeal was dismissed.

Significance of Decision

This decision of the Court of Appeal, which follows closely on the heels of Hryniak, confirms that Rule 20.05 gives judges who refuse to grant summary judgment, extensive powers to specify facts that are not in dispute and to identify the issues to be tried, and to direct the terms on which a trial is to proceed.