'a horse is dangerous at both
ends and uncomfortable in the middle'
~ Ian Fleming
The Supreme Court of Canada has endorsed a new approach in
Ontario stating "trials have become increasinggly expensive
and protracted. Most Canadians cannot afford to sue when they are
wronged or defend themselves when they are sued, and cannot afford
to go to trial. Without an effective and accessible means of
enforcing rights, the rule of law is
To combat these and other challenges, in 2010 Ontario enacted a
new summary judgment rule. Under the 2010 rule, motion judges
gained the power to make findings of fact and to hear oral evidence
without convening a full trial. The 2010 rule states that a motion
judge shall grant judgment unless there is a genuine
issue requiring a trial. However, the 2010 rule left it open
for the courts to consider how best to decide if a genuine issue
requires a trial. In December 2011, the Court of Appeal for Ontario
unveiled the 'full appreciation test'2 to aid
the lower courts through this procedure. Unfortunately, the test
did not achieve the desired outcome (namely cases decided earlier
and more economically); motion judges continued to send cases to
the perceived valhalla of a full trial, delaying justice and
running up the costs for everyone involved.
In a principled decision released January 23, 2014, the
Supreme Court of Canada swept away the 2011 'full appreciation
test' stating it "placed too high a premium" on the
conventional trial "given that such a trial is not a realistic
alternative for most litigants"3. Justice
Karakatsanis, for a unanimous Supreme Court of Canada, set out a
 On a motion for summary judgment
under Rule 20.04, the judge should first determine if there is a
genuine issue requiring trial based only on the evidence before
her, without using the new fact-finding powers. There will
be no genuine issue requiring a trial if the summary judgment
process provides her with the evidence required to fairly and
justly adjudicate the dispute and is a timely, affordable and
proportionate procedure, under Rule 20.04(2)(a). If there appears
to be a genuine issue requiring a trial, she should then determine
if the need for a trial can be avoided by using the new powers
under Rules 20.04(2.1) and (2.2). She may, at her discretion, use
those powers, provided that 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.
In other words, a motion judge is to take a two-step process:
first, can judgment be granted on the evidence before the court? If
not, then second, the motion judge must go on to determine whether
the trial can be avoided by receiving additional evidence, for
example by way of a mini-trial. If so, then it is in the
'interest of justice' to hear the additional evidence in
The Supreme Court of Canada also provided guidance into the
mechanics of the lead up to and after a summary judgment motion;
directing the parties (where there are complex issues or the record
is voluminous) to involve the motion judge in determining how and
what evidence is to be presented in the summary judgment motion.
Further, in order to salvage the resources invested:
 Where a motion judge dismisses a
motion for summary judgment, in the absence of compelling reasons
to the contrary, she should also seize herself of the matter as the
trial judge. I agree with the Osborne Report that the involvement
of a single judicial officer throughout
saves judicial time since parties
will not have to get a different judge up to speed each time an
issue arises in the case. It may also have a calming effect on the
conduct of litigious parties and counsel, as they will come to
predict how the judicial official assigned to the case might rule
on a given issue. [p. 88]
 While such an approach may complicate scheduling, to the
extent that current scheduling practices prevent summary judgment
motions being used in an efficient and cost effective manner, the
courts should be prepared to change their practices in order to
facilitate access to justice.
In a step that may reduce the number of appeals, the Supreme
Court of Canada also elevated the deference to which summary
judgment decisions are to be given stating:
 Provided that it is not against
the "interest of justice", a motion judge's decision
to exercise the new powers is discretionary. Thus, unless the
motion judge misdirected herself, or came to a decision that is so
clearly wrong that it resulted in an injustice, her decision should
not be disturbed.
A review of the Supreme Court of Canada's decision
and the 2010 rule reveals the full suite of tools that are
available in summary judgment motions. Time will tell if the newest
approach delivers access to justice in civil cases, resulting in
cases being decided on their merits and in a timely manner while
reining-in runaway legal costs. Perhaps the conventional trial is
riding into the sunset.
1 Hryniak v Mauldin, 2014 SCC 7 at para
2 "Can the full appreciation of the evidence and
issues that is required to make dispositive findings be achieved by
way of summary judgment, or can this full appreciation only be
achieved by way of a trial?" Combined Air Mechanical
Services Inc. v. Flesch 2011 ONCA 764 at para
3 Hryniak at para 4.
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