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.
A scheduling 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 evidence.
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, manner.
Originally published on www.slaw.ca.
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.
