Canada: Short And Sweet: SCC Clarifies Summary Judgment Rules, Judicial Powers

The Supreme Court of Canada recently clarified how motion judges should exercise their fact-finding and summary judgment powers under rule 20.04(2.1) and (2.2) of the Rules of Civil Procedure. In Hryniak v. Mauldin, 2014 SCC 7, the Court affirmed a >motion judge's finding that the applicant Hryniak committed the tort of civil fraud, having absconded US$10 million from various investors, including the respondents to the appeal.  While both the Court of Appeal and the Court found that this was not an appropriate case for summary judgment, they were satisfied that the evidentiary record supported the motion judge's finding, and thus deferred to his decision. In the process, the Court clarified a two-step test for summary judgment motions, explained when a motion judge should exercise her fact-finding powers, and reiterated the standard of review for a summary judgment decision.

Increasing Access to Justice

Many jurists, lawyers and politicians have bemoaned the lack of access to justice in Canada for the average citizen, as the costs of a full trial continue to rise. Following publication of the Osborne Report in 2007, the Ontario legislature amended the Rules of Civil Procedure in an attempt to increase access to justice. One such attempt was through the amendment of Rule 20, the summary judgment motion rule. Writing for the Court, Karakatsanis J. stated:

In my view, 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 trial.

By increasing the availability of summary judgment motions, it is hoped that more parties will be able to conclude proceedings in a more cost-effective manner.

The Test for Summary Judgment Clarified

After a brief review of the evolution of the summary judgment rule, the Court defined the test as asking not whether the case presents a genuine issue for trial, but "whether there is a genuine issue requiring a trial". Thus, trials are no longer the default procedure for determining an issue, but rather one option. The amendments also eliminated the presumption of substantial indemnity costs against a party that brings an unsuccessful motion for summary judgment, in order to avoid deterring parties from bringing such motions.

The Court held that there will be no genuine issue requiring a trial when a motions judge is able to reach "a fair and just determination on the merits". This will be the case when the process:

  1. Allows the judge to make the necessary findings of fact;
  2. Allows the judge to apply the law to the facts, and
  3. Is a proportionate, more expeditious and less expensive means to achieve a just result.

Most importantly, the new powers granted to a motions judge under Rules 20.04(2.1) and (2.2) will theoretically expand the number of cases in which there will be no genuine issue requiring trial, as they permit motions judges to weigh evidence, evaluate credibility and draw reasonable inferences. This raises the question of when such fact-finding powers should be used. The Supreme Court outlined a two-step test on a motion for summary judgment:

  1. The motions 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.
  2. If there appears to be a genuine issue requiring trial, the judge should then determine if the need for trial can be avoided using the new fact-finding powers under the Rules.

In determining whether the motion judge can use her fact-finding powers, the evidence "need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute". In the Court's opinion, a documentary record, when supplemented by the new fact-finding tools such as oral testimony at the motion hearing, is often sufficient to resolve issues fairly and justly without a full trial.

The Court recognized that failed summary judgment motions can add to costs and delay, rather than expediting the process as intended. However, this risk can be managed by a judge using trial management powers provided by Rule 20.05. Absent compelling reasons, a judge who dismisses a motion for summary judgment should seize herself of the matter as the trial judge. She can then use the insight gained from hearing the motion to formulate a trial procedure in a way that is "sensitive to the complexity and importance of the issue, the amount involved in the case, and the effort expended on the failed motion".

The Case Before the Court

Turning to the decision of the motion judge on appeal, the Court began by setting out the four elements of the tort of civil fraud (discussed in greater detail in our article on Bruno Appliance and Furniture). While both the Supreme Court and Court of Appeal found that the motion judge did not explicitly address the correct test for civil fraud, both were satisfied that his findings supported the result.  The Supreme Court explained that, absent an error of law, the exercise of powers under the new summary judgment rule attracts . When a motion judge exercises her new fact-finding powers and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. 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.

In the case on appeal, the motion judge did not err in exercising his fact-finding powers. The Court held that the record was sufficient to make a fair determination, and that a timely resolution of the matter was called for. As such, the appeal was dismissed, and the summary judgment order upheld.


This case is important for litigation counsel, as cost-conscious clients continue to seek satisfactory alternatives to the full trial process. By clarifying when a motion judge can hear further evidence in determining whether there is an issue requiring trial, this decision will hopefully encourage more expedited proceedings. It remains to be seen whether this will have any significant impact on the cost and time involved in most going forward.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions