In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada
considered Ontario's civil procedure rules 20.04(2.1) and
(2.2). These rules were implemented in 2010 to allow judges hearing
an application for summary judgment to weigh evidence, evaluate the
credibility of such evidence, and draw any reasonable inference
from the evidence accepted. A judge also has the discretion to hear
oral evidence from the parties.
Justice Karakatsanis, writing for a unanimous Court, described
the necessity of change in civil procedure in order to ensure
access to civil justice, saying:
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. 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.
Keeping in mind these public policy aims of the new rules in
Ontario, the Court found that the powers of a judge on summary
judgment should be interpreted broadly so as to achieve
proportionality between the claims of litigants and the costs of
adjudication. It noted that, "ordinary Canadians cannot afford
to access the adjudication of civil disputes." The requirement
to go to trial in cases with disputed facts denies these people a
fair adjudication of the dispute.
The changes to the summary judgment rule in Ontario were brought
about in response to a report commissioned by the Ontario
Government with the goal of increasing access to justice and
reducing costs to litigants. The test for summary judgment was
changed from determining if there is a genuine issue for
trial to determining whether there is a genuine issue
requiring a trial. Justice Karakatsanis took a purpose
approach to the new test, stating:
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. This will be the case 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.
The Court noted that the evidentiary requirements should not be
too onerous. Often, a documentary record will be sufficient to
determine the material issues in a just manner. The fact finding
tools provided by the new rules, although more expeditious than
those found in a traditional trial, are no less valid for the
purpose of fact finding. The Court also noted that, even where the
application for summary judgment is rejected, these tools allow the
chambers judge to define the issues to be tried and send those
issues to trial in an expeditious manner.
Given the whole-hearted endorsement of the Supreme Court of
Canada for Ontario's new rules on summary judgment, and the
ever-increasing burden on the Courts, it seems that the trend
towards summary determination of civil disputes will continue.
There are many salutary features to such determinations, both from
an access to justice perspective and the potential for an increase
in judicial economy. Also, as the Court notes, quicker and cheaper
access to justice may soothe the rash of self-represented litigants
that currently afflicts the justice system. Finally, the
availability of summary judgment in a broader range of cases will
level the playing field in negotiations between parties with
Should we be looking for other provinces to follow Ontario's
lead in implementing further changes to allow the summary
disposition of civil claims? Expanding the interlocutory powers of
the courts to determine simple matters appears, at this stage, to
have the potential to transform the civil justice system.
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