The Supreme Court of Canada has released its much anticipated
decision dealing with summary judgment motions. In a welcome
outcome, the Court has lowered the bar for obtaining summary
judgments, such that many parties and the court system may be
able to avoid the unnecessary delays and costs that come with full
blown discovery and trials.
In Hyrniak v. Mauldin etc al., 2014 SCC 7, the Court
recognizes that trials are not required to decide all cases and
that other, less costly, forms of adjudication are equally
legitimate. The Court cautions that the rule of law is threatened
when ordinary citizens cannot access justice.
The Court states that the principal goal of the justice system
remains the same: a fair process that results in a just
adjudication of disputes. A fair and just process must permit a
judge to find the facts necessary to resolve the dispute and to
apply the relevant legal principles to the facts as found. However,
that process is illusory unless it is also accessible, which means
proportionate, timely and affordable. To protect accessibility, the
Court notes that "a shift in culture" is required.
The Court applies these principles to Ontario's recently
revised summary judgment rule and holds that:
1. summary judgment motions must be granted whenever there is no
genuine issue requiring a trial;
2. there will be no genuine issue requiring a trial when the
judge is able to reach a fair and just determination. This will be
the case when the process:
a. allows the judge to make the necessary findings of fact,
b. allows the judge to apply the law to the facts, and
c. is a proportionate, more expeditious and less expensive means
to achieve a just result.
3. the Court of Appeal for Ontario "placed too high a
premium on the 'full appreciation' of evidence that can be
gained at a convention trial, given that such a trial is not a
realistic alternative for most litigants"; and
4. the powers to weigh evidence, evaluate credibility, draw
reasonable inferences and hear oral evidence are presumptively
available under the summary judgment rule.
These findings, combined with the Supreme Court's suggestion
that the Court should be involved in managing summary judgment
motions early in their life, increases the availability and
flexibility of summary judgment motions in Ontario while also
increasing the probability that a successful summary judgment
motion will finally resolve the dispute.
The Need for a Culture Shift: Where We Were and Where We Need
As we explained in our
December 2011 Osler Update on the Court of Appeal's
decision, the pre-2010 summary judgment rule was thought to be
ineffective because of jurisprudence that prohibited motion judges
from evaluating the credibility of witnesses, weighing the evidence
or making findings of fact.
A new Rule 20 came into force on January 1, 2010 which greatly
expanded the powers of judges to weigh evidence, evaluate
credibility and make findings of fact. However, judicial
interpretation of this new rule was not consistent, with some cases
interpreting these powers narrowly, risking making the new rule
largely useless in obtaining early resolution of matters and
Even though the Ontario Court of Appeal took a bolder approach
to the new rule, the Supreme Court held that the Ontario Court of
Appeal's decision did not go far enough and placed too much
emphasis on the benefits of a conventional trial. The question
should not be whether a full trial is needed to fully appreciate
the evidence, but rather, whether the added expense and delay of
fact finding at trial is required for a fair process and a just
In this new culture, the Supreme Court directs summary judgment
motion judges to assess whether they are confident they can fairly
resolve the dispute before them. As the Court notes, the
"standard for fairness is not whether the procedure is as
exhaustive as a trial, but whether it gives the judge confidence
that she can find the necessary facts and apply the relevant legal
principles so as to resolve the dispute."
To achieve this new culture, the Supreme Court directs parties
and the courts to manage the motion at the early stages, in order
to control its scope. The Court also states that the motion judge
should remain seized of the matter. It remains to be seen how
Ontario's already strained judicial resources will be able to
implement these practical suggestions.
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