Summary judgment motions are brought to determine issues on proceedings without the cost and delay of a full trial. The issuance of the Supreme Court of Canada's decision in Hryniak v. Mauldin, 2014 SCC 7, has provided guidance in how such motions are to be conducted. Its message is clear: there needs to be an increased focus on proportionality in civil litigation, and summary judgment motions are to be used to further that aim.

Rule 20, the rule that permits summary judgment motions, was amended in 2010. Early decisions of the Superior Court of Justice after the amendment applied the new powers expansively. However, in December 2011, the Ontario Court of Appeal released its first decision on the interpretation of the amended Rule 20, and set the tone for its application for the next two years. That decision, which was actually one decision released for five appeals heard together, was Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.

Combined Air introduced the "full appreciation" test: can the full appreciation of the evidence and issues be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?1 The Court stated that generally, a trial was required in cases with conflicting evidence emanating from a number of witnesses or a voluminous record, while a full appreciation could be achieved in document-driven cases with limited testimonial evidence, or ones with limited contentious factual issues2.

After Combined Air, Ontario courts were more restrained in granting summary judgment motions. As a practical result, parties who might otherwise bring a summary judgment motion thought twice about doing so if there would be numerous affidavits or volumes of documents, even if the legal issue was straightforward.

Two of the five matters heard together in the Combined Air appeal were further appealed to the Supreme Court of Canada. Hryniak was one of them. In Hryniak, the Court criticizes the cost and delay associated with civil litigation, and calls for a "shift in culture" in the civil justice system to ensure a fair and just process that is also accessible, proportionate, timely and affordable.

The decision touches broadly on summary judgment motions, from how they should be managed to the standard of review if they are appealed. However, there are a number of points made by the Court that will impact how summary judgment motions are approached in Ontario:

  1. There should be no presumption that a "full appreciation" of certain evidence can only be had at trial. There will be no genuine issue requiring a trial when the judge can reach a fair and just determination of the merits on a motion for summary judgment.3
  2. To keep control over the summary judgment process, litigants should bring preliminary motions for directions. These can streamline the process by setting timelines and guidelines for evidence, or can permit a responding party to seek to stay or dismiss the motion on the basis that it is premature or improper (ie, it will not advance the litigation or serve the principles of timeliness and affordability).
  3. If the summary judgment motion is dismissed, or only partly succeeds, the motion judge should remain seized of the matter and would then control the pretrial process and ultimately hear the trial.

That message aligns with the tone of the judgments of the Toronto Estates List of the Ontario Superior Court of Justice, which has itself commented on the need for proportionality. Indeed, the proportionality principles in Hryniak are being implemented in Orders for Directions in matters on the Estates List. Recently, an Order for Directions in a will challenge proceeding cited Hryniak in limiting pre-hearing examinations on the basis of proportionate costs and setting a schedule to move the matter quickly.4

Timeliness and proportionality are highly relevant considerations in estate matters, where finite estate funds can be quickly depleted by litigation and disputes between bereaved family members can take a heavy psychological toll. The changes called for in the Hryniak decision, once implemented, will likely have positive impact on the conduct of estate litigation in the years to come.

Footnotes

1 para 50

2 paras 51, 52

3 paras 48-50, 56

4 Re Estate of Ireni Traitses, Deceased, 2014 ONSC 2102.

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