On January 23, 2014 the Supreme Court of Canada released its
decision in Hryniak v. Mauldin,
overturning the Ontario Court of Appeal's test for the
appropriateness of summary judgments and replacing it with a
broader test aimed at increasing access to justice for ordinary
The decision speaks to how access to justice can be achieved by
simplifying pre-trial procedures and moving away from the
conventional trial model in appropriate cases. In reaching this
conclusion, the decision emphasizes that a "cultural
shift" is required in order to promote fair, timely and
affordable access to the civil justice system. This may result in
the increased use of summary judgment motions in certain types of
employment law cases, particularly wrongful dismissal actions where
cause is not an issue.
Ontario's summary judgment rules allow litigants to obtain
disposition by a judge without proceeding to trial. Summary
judgment motions normally involve placing a written record of
evidence before a judge, seeking a judicial determination on the
basis that there is no genuine issue requiring a trial. In making
this determination, a judge must still consider evidence submitted
by the parties although that evidence is not provided through oral
testimony nor is it as exhaustive as would be adduced through
trial. Importantly, a judge hearing a summary judgment motion may
weigh evidence, draw inferences, evaluate credibility and require
the provision of oral evidence. While these powers are
discretionary, their availability provides an alternative to the
trial model as a means of adjudicating claims.
In interpreting the summary judgment rules, the Supreme Court
found that the Court of Appeal had previously placed too high a
premium on the "full appreciation" of evidence that can
be gained at a conventional trial. It substituted a more lenient
test which makes clear that while a motion judge must have an
appreciation of the evidence necessary to make a dispositive
finding, such an appreciation is not only available following a
trial. As a result, the motion judge hearing a summary judgment
motion should not be focused on "how much" and "what
kind" of evidence is available, but rather whether the dispute
can be resolved fairly on the evidence before the court. The
essential elements of the new test are as follows:
[A] trial is not required if a summary judgment motion can
achieve a fair and just adjudication, if it provides a process that
allows the judge to make the necessary findings of fact, apply the
law to those facts, and is a proportionate, more expeditious and
less expensive means to achieve a just result than going to
The Supreme Court's endorsement of an expanded approach to
summary judgment will certainly impact all areas of civil
litigation. However, the decision's emphasis on access to
justice and proportionality make it of particular interest in areas
such as employment law, where litigation typically involves
individuals (and at times organizations or companies), who may not
be able to afford the costs and delays associated with the
traditional trial process. In the circumstances, Hryniak
may open the door to an increase in summary judgment motions in
employment law cases and, in particular wrongful dismissal actions
where there are no allegations of cause. As any such developments
remain to be seen, the manner in which litigants apply the new
summary judgment test should be monitored closely by employers and
employment law practitioners.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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