There is no shortage of rhetoric in the Supreme Court of Canada’s recent decision on the scope and interpretation of amendments to Ontario’s Rule 20 governing motions for summary judgment.
A “culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system,” trumpets the unanimous ruling in Hryniak v. Mauldin, released Jan. 23, along with a companion decision Bruno Appliance and Furniture Inc. v. Hryniak. That culture shift, writes Justice Andromache Karakatsanis, is necessary to “reflect modern reality and recognize that new models of adjudication can be fair and just.”
What follows, however, is more than mere rhetoric. The Supreme Court proceeds to jettison the “full appreciation” test fashioned by the Court of Appeal for Ontario in Combined Air Mechanical Services Inc. v. Flesch. That test prevented a judge considering a summary judgment motion from exercising newly conferred powers in Rule 20.04(2.1) of the Rules of Civil Procedure to weigh evidence, evaluate credibility, and draw reasonable inferences unless he or she was satisfied a full appreciation of the evidence and issues could be achieved by way of summary judgment.
The full appreciation test functioned as a judicially created benchmark for determining when the interest of justice required a trial, as opposed to summary disposition.
Noting the “full trial has become largely illusory” and Combined Air sets the summary judgment bar “too high,” Hryniak instead emphasizes the powers to weigh evidence, evaluate credibility, and draw reasonable inferences at summary judgment are “presumptively” available to the motion judge.
“While I agree that a motion judge must have an appreciation of the evidence,” writes Karakatsanis, “such an appreciation is not only available at trial.” On a summary judgment motion, “the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute.”
Hryniak strongly endorses summary judgment motions, encourages frequent recourse to both the Rule 20.04(2.1) powers and ability of the motion judge to order oral evidence at these motions, and relies heavily on a consideration of whether the motion judge has “confidence” in his or her ability to “find the necessary facts and resolve the dispute” in a summary manner.
The Supreme Court suggests a documentary record, as supplemented by the Rule 20.04(2.1) powers and oral evidence, will often be “sufficient to resolve material issues fairly and justly.”
The Supreme Court’s unabashedly broad interpretation of the summary judgment rule, which favours proportionality and fair access for litigants, will undoubtedly result in more summary judgment motions.
Significantly, Hryniak also makes a decision by a motion judge to exercise his or her fact-finding powers and determine whether there is a genuine issue requiring trial more difficult to review on appeal. Specifically, the Supreme Court characterizes this decision as a discretionary one of mixed fact and law, thereby subjecting it to a deferential standard of review. This differs from Combined Air, in which the Court of Appeal observed the question of whether there was a genuine issue requiring trial is a legal question, subject to appellate review at the lower standard of correctness.
Hryniak goes beyond simply endorsing summary judgment; indeed, the Supreme Court lists a number of tools it believes can be used to maximize the efficiency of a summary judgment motion.
For one, it suggests a court can control the scope of a motion for summary judgment through early judicial involvement and, where necessary, the parties can bring a motion for directions in advance of a planned summary judgment motion.
In some circumstances, such as “where it was evident that the record would be complex or voluminous,” a failure to seek directions may result in substantial indemnity costs at summary judgment. As a matter of practice, the Supreme Court indicates the judge hearing the motion for directions “should generally be seized of the summary judgment motion itself,” ensuring his or her acquired knowledge about the matter does not go to waste.
The Supreme Court also expressly sanctions a party’s use of a motion for directions to seek an order to stay or dismiss the summary judgment motion in circumstances where that motion is “premature or improper.”
This practice, which was also suggested in Combined Air, is put forward by the Supreme Court as being appropriate for challenging “lengthy, complex motions” for summary judgment that would “not sufficiently advance the litigation or serve the principles of proportionality, timeliness and affordability.” Otherwise, there is no discussion by the top court of the limitations on these motions to stay or dismiss summary judgment.
Finally, in the event summary judgment is unsuccessful or only partially successful, Hryniak indicates the broad powers in Rule 20.05 allow the motion 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 customized way.
Notwithstanding the Supreme Court’s recognition the Ontario Legislature did not adopt an express summary trial procedure, Karakatsanis finds the powers in Rule 20.05 are broad enough to support a “summary trial model.” Further, absent “compelling reasons to the contrary,” the Supreme Court directs the motion judge to seize him or herself as the trial judge.
Time will tell if the SCC’s decision in Hryniak actually brings about the “culture shift” in the civil justice system it seeks to facilitate. While the Supreme Court is right to recognize the traditional balance struck by extensive pretrial process and the conventional trial “needs to be re-adjusted,” it is arguable by alluding to motions for directions and sanctioning motions to stay or dismiss improper summary judgment motions, the more immediate re-adjustment brought about by Hryniak will be an increased number of motions in the run-up to summary judgment.
While counsel must heed the Supreme Court’s call to “act in a way that facilitates rather than frustrates access to justice,” the success of Hryniak will hinge in large part on whether judges take up the Supreme Court’s broader call to “actively manage the legal process in line with the principle of proportionality.”
Ian Matthews is an associate at Lax O’Sullivan Scott Lisus LLP in Toronto, and a former law clerk at the Supreme Court of Canada. Ian practises corporate and commercial litigation, with a focus on class actions. He can be reached at firstname.lastname@example.org.