On January 23, 2014, the Supreme Court of Canada released its
reasons in Hryniak v. Mauldin. The case continues
the current trend of lowering the bar on the test for summary
The Court made a number of observations about the fact that most
people cannot afford to take matters to trial, the importance of
ensuring access to justice for all Canadians, and the fact that
such access must be provided in a timely way. Accordingly,
according to the Court, "summary judgment rules must be
interpreted broadly favouring proportionality and fair access to
the affordable, timely and just adjudication of claims."
The Court went on to suggest that even in its current
interpretation of Rule 20 of the Rules of Civil Procedure,
the Ontario Court of Appeal has set the bar too high.
To summarize, until not very long ago, summary judgments were
generally reserved to cases which were absolutely clear cut, and in
which there were no credibility issues to be resolved. Any
case that involved questions of credibility had to go to trial so
that live witnesses could testify and judges could decide who to
The rule on summary judgments was subsequently amended and its
interpretation broadened by the Court of Appeal. As a result,
motion judges were empowered to make findings of credibility and
issue summary judgments where they were satisfied that they had a
"full appreciation" of the facts and the issues. In
such cases, they could make those decisions without putting the
parties to the expense and delay involved in conducting a
The Supreme Court of Canada now seems to be suggesting that
motion judges can make these decisions without necessarily having
the full appreciation of the facts. The Court has to govern
itself on the basis of proportionality and "the
proportionality principle means that the best form for resolving a
dispute is not always that with the most pain staking
procedure". If the process is disproportionate to the
nature of the case, there will not be a fair and just result.
Accordingly, judges are to make findings of fact unless it is in
the interest of justice that the matter go to trial. If the
judge feels that he or she can "fairly and justly adjudicate a
claim", it will generally be deemed appropriate for him to do
so and not against the interest of justice for this to be
done. If a party insists that oral evidence must be obtained
in order for there to be a fair and just adjudication, that party
now has the obligation to demonstrate why this is true.
In other words, the onus has shifted completely. It is no
longer necessary for a party seeking a summary judgment to show
that oral evidence is not necessary. Rather, the responding
party must now demonstrate why oral evidence is necessary.
In my view, this is a fundamental shift in approach. The
Supreme Court of Canada seems to be saying that to the extent
possible, the days of protracted and expensive litigation are over,
to the extent possible.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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