"Trials have become increasingly expensive and protracted."
"“Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. […] The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.”
“Summary Judgment motions provide one such opportunity.”
On January 23, 2014, the Supreme Court of Canada released its reasons for decision in Hryniak v. Mauldin1 (“Mauldin”) and Bruno Appliance and Furniture, Inc. v. Hryniak2 (“Bruno Appliance”); two appeals that arose under the new summary judgment Rule 20 of Ontario’s Rules of Civil Procedure.3
The effect of these decisions is a fundamentally altered outlook on summary judgments. The Supreme Court rejected the “full appreciation test” adopted by the Court of Appeal for Ontario in favour of a less rigid and more pragmatic analysis.
In theory, at least, the spirit of the 2007 Civil Justice Reform Project, commissioned by former Ontario Associate Chief Justice Coulter Osborne, Q.C., appears to have been embraced with the result that litigants should now be able to “have their day in court” sooner, albeit not always in a traditional trial setting.
The New Approach to a Motion for Summary Judgment
In Mauldin, the Supreme Court established the following new approach to summary judgment under Rule 20.04:
- Without employing his or her fact-finding powers (Rule 20.04(2.1)) or exercising his or her discretion to hear oral evidence (Rule 20.04(2.2)), the judge must first determine if there is a genuine issuerequiring a trial. No genuine issue exists if the summary judgment process provides the judge with the evidence necessary to fairly and justly determine the dispute and if summary judgment is a timely, affordable, and proportionate procedure.4
- If there appears to be a genuine issue requiring a trial, the judge must determine if the need for a trial can be avoided by hearing oral evidence or using his or her fact-finding powers. These powers are presumptively available to be exercised unless their use is contrary to the interests of justice; that is, the powers may be used “if they will lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.”5
- Although the decision to use the powers conferred by Rules 20.04(2.1) and 20.04(2.2) is discretionary and attracts deference on appeal, summary judgment is mandatory where there is no genuine issue requiring a trial.6
The Court held that there will be no genuine issue requiring a trial when “the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.”7 A fair and just determination is only possible when 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.” 8
Significantly, consideration of the fair and just adjudication of the parties’ dispute is no longer assessed through the lens of a full trial procedure (although comparison of the cost and speed of both procedures and comparison of the evidence that will likely be available at trial and the evidence heard on the motion is invited). Instead, on a Rule 20 motion, the judge must determine whether he or she “can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”9
A motion judge should hear oral evidence under Rule 20.04(2.2) when:
- It can be obtained from a small number of witnesses and gathered in a manageable period of time;
- The issue addressed by the oral evidence is likely to have a significant impact on the dispute; and
- The issue raised by the oral evidence is narrow and discrete.10
However, the Supreme Court warned that there are no absolutes with respect to the hearing of oral evidence; instead, the power to hear oral evidence “should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action.”11
Counsel seeking to lead oral evidence should demonstrate “why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences […]” and may be required to provide a “will say” or some other description of the proposed evidence before it is heard by the judge.”12
To help guard against summary judgment motions becoming costly additions to an already expensive system of dispute resolution, the Supreme Court supported the early judicial management of a matter. For example, a judge may provide directions in respect of the appropriate timelines and procedures in order to control the scope of a summary judgment motion.13 In the event of a failed or partially successful summary judgment motion, a judge may “use the insight […] gained from hearing the summary judgment 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.”14
Overall, the Supreme Court’s analytical framework was guided by the view that summary judgment motions provide an opportunity for the fair, just, and proportionate adjudication of disputes:
“[…] a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.”15
Application to the Facts
Mauldin and Bruno Appliance involved allegations of civil fraud against the same defendant, Robert Hryniak (“Hryniak”), by different plaintiffs. In both cases, the Supreme Court dismissed the appeal, upholding the Court of Appeal’s decision to grant summary judgment in Mauldin but not in Bruno Appliance.
In 2001, a group of American investors, known as the Mauldin Group, met with Hryniak, Robert Cranston (“Cranston”), and Gregory Peebles (“Peebles”) at the law offices of Cassels Brock & Blackwell LLP (“Cassels Brock”) in Toronto. Hryniak was the principal of Tropos Capital, a company that traded in bonds and debt instruments. Cranston was the principal of Frontline Investments Inc., a Panamanian company. Peebles was a corporate-commercial lawyer and senior partner at Cassels Brock.
Persuaded by a supposed investment opportunity, the Mauldin Group wired $1.2 million to Peebles’ trust account at Cassels Brock, which was transferred to Tropos Capital. The Mauldin Group lost their investment as Hryniak claimed that the funds were stolen.
In 2002, Albert Bruno (“Bruno”), the principal of Bruno Appliance and Furniture, Inc., met with Cranston and Peebles at Cassels Brock. Hryniak did not attend this meeting. Bruno Appliance eventually wired $1 million to Cassels Brock for investment. The funds were assigned to an account associated with Tropos Capital and were lost.
In Mauldin, the Supreme Court determined that there was no genuine issue requiring a trial. Hryniak was a clear perpetrator of civil fraud against the Mauldin Group and no credible evidence supported his claim to be a legitimate trader. In other words, the outcome of the case against Hryniak was clear. The interest of justice did not preclude the use of the motion judge’s fact-finding powers as “[t]he record was sufficient to make a fair and just determination and a timely resolution of the matter was called for.”16
In Bruno Appliance, however, the Supreme Court held that there was a genuine issue requiring a trial because the evidence was not sufficient to establish that Hryniak perpetrated civil fraud against Bruno Appliance. Hryniak was not in attendance during the 2002 meeting between Bruno, Cranston, and Peebles. The tort of civil fraud requires, among other things, a misrepresentation which induced the innocent party to act. The motion judge failed to identify a necessary element of civil fraud. According to the Supreme Court, although “the evidence clearly demonstrates that Hryniak was aware of the fraud, and may in fact have benefited from the fraud, whether Hryniak perpetrated the fraud by inducing Bruno Appliance to contribute $ 1 million to a non-existent investment scheme is a genuine issue requiring a trial.”17
The Supreme Court has expanded the scope of summary judgment motions, holding that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”18
There can be little doubt that the Supreme Court has recalibrated the test to be applied on a motion for summary judgment. The impact of these decisions remains to be seen; however, an increase in the number of summary judgment motions should ensue. The new regime is best understood by comparing the outcomes in the two cases on appeal. Traditionally, allegations of fraud, as they typically involve matters of credibility, were left to be dealt with by trial judges. Both cases on appeal involved fraud allegations. In Mauldin, summary judgment was granted against the defendant because the evidence sufficiently implicated him. That nexus was missing in Bruno Appliance, with the result that the matter was sent to trial. One might question why oral evidence or a mini-trial were not chosen as the most appropriate remedy. However, since the action against the other defendants was proceeding to trial, in any event, the Supreme Court concluded that hearing the remaining actions together "is the most proportionate, timely and cost effective approach.”19
While Rule 20 of Ontario’s Rules of Civil Procedure were in issue, the decisions have an important impact on all Canadian jurisdictions with similar mechanisms. The summary judgment motion is now seen as a “significant alternative model of adjudication” which is no longer limited to a straightforward and document-driven case.20