The Supreme Court of Canada released its anticipated decision in
Hyrniak v. Mauldin, breathing new life into summary
procedures. Calling for a "shift in culture" toward
increased access to justice, the Supreme Court held that
"summary judgment rules must be interpreted broadly, favouring
proportionality and fair access to the affordable, timely and just
adjudication of claims."
The case involved the interpretation of Ontario civil procedure
rules governing summary judgment. Summary judgment allows for the
resolution of litigation by way of a motion and is intended to
provide a cheaper, faster alternative to a full trial.
On January 1, 2010, a series of amendments to the summary
judgment rules came into force, which significantly expanded a
judge's power on a summary judgment motion. The rule changes
were intended to make summary judgment more accessible. They allow
a judge to weigh the evidence, assess credibility and draw
inferences. The 2010 amendments effectively overruled a previous
line of cases preventing the motion judge from exercising these
powers on summary judgment, limiting the use of the summary
Following the amendments, there was uncertainty about when and
how a motion judge should use the expanded powers to grant summary
judgment. In 2011, the Ontario Court of Appeal released its
decision in Combined Air Mechanical Services Inc. v.
Flesch, which established the principles for determining when
a case should be decided by way of summary judgment. The Court of
Appeal held that summary judgment should be granted in narrow
circumstances, and only where the judge can achieve a "full
appreciation" of the evidence without the need for trial-like
attributes, such as to hear and experience the fact-finding process
Supreme Court of Canada Decision
In Hryniak, the Supreme Court of Canada rejected the
"full appreciation" test as placing "too high a
premium on the evidence gained at a conventional trial." The
Supreme Court concluded that "summary judgment rules must be
interpreted broadly, favouring proportionality and fair access to
the affordable, timely and just adjudication of claims."
Central to the Supreme Court's decision is the principle that
the rules should facilitate timely and affordable access to justice
where trials have become increasingly expensive and protracted.
Moreover, the Supreme Court held that summary judgment decisions of
lower court judges should be granted deference on appeal.
Under the new rules, summary judgment must be granted where
there is "no genuine issue requiring a trial." The
Supreme Court held that there will be no genuine issue requiring a
trial when the summary judgment 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.
It is not necessary that the evidence on a summary judgment
motion be equivalent to that at trial, but the motion judge must be
confident that he or she can fairly resolve the dispute using the
summary judgment procedure. The Supreme Court emphasized that
"proportionality" is a key factor when determining
whether summary judgment should be granted. Proportionality
involves a comparative analysis and may require the motion judge to
assess the relative efficiencies of proceeding by summary judgment
and not full trial. Whether summary judgment proceedings are
appropriate will depend on the circumstances of the case.
The Supreme Court established a roadmap to a motion for summary
judgment that requires the judge to first determine if there is a
genuine issue requiring trial before him or her, without
using the new fact-finding powers. If there appears to be a genuine
issue requiring a trial, the judge should then determine if the
need for a trial can be avoided by using the new powers. The judge
may use those new powers, provided their use is not against the
interest of justice. Their use will not be against the interest of
justice "if they will lead to a fair and just result and will
serve the goals of timeliness, affordability and proportionality in
light of the litigation as a whole."
Overall, in furtherance of improving access to justice, the
Supreme Court has granted a wide berth for summary judgment
determinations with limited ability to appeal.
The content of this article does not constitute legal advice
and should not be relied on in that way. Specific advice should be
sought about your specific circumstances.
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A recent decision of the Ontario Court
of Appeal, D'Onofrio v. Advantage
Car & Truck Rentals Ltd., 2017 ONCA 5,
asks whether a party who takes "no
position" on a summary judgment
motion is later bound by the motion
judge's findings in the ongoing
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