New rulings showing effects of SCC’s summary judgment decision

To give effect to the Supreme Court of Canada’s decision in Hryniak v. Mauldin,  an Ontario Superior Court judge has asked the courts to consider scheduling trials in which judges or parties aren’t physically present.

After he granted a motion for summary judgment this week, Justice Frank Marrocco made side remarks about the need for a single judge to see a case through trial even though it could be difficult for the judge attend in person.

In Hryniak, the Supreme Court decided if a judge dismisses a motion for summary judgment, that same judge should preside over the trial in that case. The top court acknowledged this might prove challenging in terms of scheduling, especially where judges are on circuit, but said courts should change their practices to accommodate it.

For Marrocco, it’s not necessary that everyone is present in the court room.

“The Superior Court of Justice is obligated to do everything within its power to deliver access to justice to people involved in civil disputes. Where judges are on circuit within a region, modern audio and visual technology does not require that everyone be in the same place for witnesses to heard or submissions received,” he said.

“Closing submissions can also be in writing. Given the Supreme Court’s direction, it is not unreasonable to insist that those responsible for court administration must overcome scheduling difficulties presented by what is now an aspect of the law concerning motions for summary judgment.”

Hryniak broadened the test for summary judgment, allowing judges to decide on a case “if there is no issue requiring a trial.” Numerous cases have cited Hryniak since the SCC’s January ruling.

In another recent Ontario decision, Superior Court Justice David Corbett urged parties to treat a motion for summary judgment seriously, and warned against handling it as if it were “a speed bump on the long highway to trial.”

If plaintiffs are faced with a motion for summary judgment, they “must lead trumps or risk losing,” he said in Sweda Farms v. Egg Farmers of Ontario.

He added: “The plaintiff who treats a defence motion for summary judgment as a speed bump on the long highway to trial risks crashing its case in the deep ditch of dismissal.”

Toronto lawyer Allan Rouben says Corbett is urging parties to treat motions for summary judgment “extremely seriously.” It’s a principle that has been reinforced by Hryniak, he says .

“I think what [Corbett] is getting at there is if you’re faced with a motion for summary judgment, put forward the evidence you would lead at trial if you have it available,” Rouben adds. “Take it extremely seriously.”

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