On January 23, 2014, the Supreme Court of Canada released its
decision in the case of Hryniak v. Mauldin, in which is
signaled a fundamental shift in the way that summary judgment
motions are to be handled in the Province of Ontario.
decision, released last week by Justice Brown of the Commercial
List in Toronto, provides the first insight as to how summary
judgment motions may be changing on a practical level.
Justice Brown noted, correctly, that it is conceivable that
parties may end up having to make up to three appearances in
connection with motions for summary judgment. The first being an
initial motion for directions from the judge, the second being the
actual argument of the summary judgment motion and the third being
a second hearing involving viva voce evidence, should the motions
judge decide that oral evidence is necessary.
Always one to strive for judicial efficiency, Justice Brown
indicated that it made the most sense for him to set a schedule for
the summary judgment motion which would require the parties to
complete the written record well in advance of the hearing date, so
that the judge scheduled to hear the motion could assess the
adequacy of the written record in advance of the hearing and give
directions in advance of the hearing about the calling of oral
Justice Brown noted that this procedure should be utilized on
the Toronto Region Commercial List, given the availability of the
case management mechanism available to those judges. He went on to
state that "how a summary judgment motion should be scheduled
where case management does not exist or where the judges frequently
circuit, I leave to other judges to consider and decide."
To me, the decision is interesting for two reasons.
First, it provides a glimpse as to how the Supreme Court
decision will alter the scheduling and hearing of summary judgment
motions at the most basic level. Second, it raises the issue of
whether or not a judge ought to decide, in advance of the hearing,
and in the absence of oral submissions from counsel, whether or not
oral evidence is necessary in a particular case.
Time will tell, on both fronts, but in the meantime it is safe
to say that the Supreme Court decision will change summary judgment
motions not only in a substantive, but also in a procedural,
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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