Canada: Supreme Court Refines Ontario Litigation Rules: Aims For Lower Costs, More Accessible Civil Justice

Last Updated: April 8 2014
Article by Aaron Grossman

There is a prospect for faster, less expensive and more accessible justice for Ontario businesses and residents by virtue of a decision recently issued by the Supreme Court of Canada.

The decision provides for summary judgment to be granted in a wider variety of cases than was previously available. Bringing a summary judgment motion can allow a party in an action to have a judgment rendered more expeditiously than in the trial process. The Court's primary rationale for expanding the availability of summary judgment was to increase access to justice and lower the cost of litigation for Ontarians.

A summary judgment hearing is normally conducted on the basis of affidavit evidence and transcripts from the cross-examinations of the witnesses who swore the affidavits. Previously, live witnesses were generally not permitted and the summary judgment motions judges decided the case on the basis of a paper record, without seeing or hearing the witnesses live.

Amendments to the summary judgment rules were made in 2010 to allow for some live witnesses to be called on discrete issues. In addition, summary judgment motions judges were provided new fact-finding tools that were previously not available to help them decide such motions -- the ability to weigh the evidence, to evaluate the credibility of a witness and to draw reasonable inferences from the evidence, even though they never saw or heard the witnesses in person. It was these amendments that were recently interpreted by the Supreme Court of Canada.

In a case called Hryniak v. Mauldin1, Robert Hryniak "lost" several million dollars provided to him by investors that was earmarked for investment in an offshore bank. The plaintiffs were investors who alleged that Hyrniak was liable for civil fraud. Rather than go to trial, the plaintiffs brought a summary judgment motion asking the court to decide, on the basis of a paper record, without live witnesses, that the fraud had been perpetrated. They succeeded on the motion, with the Supreme Court of Canada endorsing the motion court's judgment.

Writing for a unanimous Supreme Court, Madam Justice Andromache Karakatsanis set out the foundation for the Court's decision as follows:

"Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly 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 threatened. Without public adjudication of civil cases, the development of the common law is stunted.

"Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

"Summary judgment motions provide one such opportunity. ..."

This opening set the tone for the remainder of the decision, in which the Supreme Court concluded as follows:

  • Historically, summary judgment has evolved from weeding out clearly unmeritorious claims or defenses to granting judgment in situations where the dispute can be resolved fairly and justly.
  • Summary judgment motions can be an effective and efficient dispute resolution tool in appropriate cases.
  • Judges generally must utilize their new fact-finding powers if doing so will assist in granting summary judgment, unless doing so would be against the interest of justice. Again, these powers include hearing evidence from live witnesses, weighing the evidence, making findings of credibility and drawing reasonable inferences from the evidence.
  • The trial is no longer the default dispute-resolution mechanism, as most litigants never get to trial nor do they expect to do so.
  • Summary judgment is a key tool in promoting access to justice and reducing the cost and delay associated with court based litigation in Canada. A key to the effective use of the rule is proportionality -- tailoring the procedures used to the importance and size of the case.
  • In order to grant summary judgment, the motions judge must have confidence that the summary judgment procedure will justly resolve the merits of the case. In addition, summary judgment must be "a proportionate, more expeditious and less expensive means to achieve a just result." The concept of proportionality in litigation is that orders made and procedures used in a given case should be proportionate to the relative importance of that case.
  • If judgment in not granted on a summary judgment motion, the costs expended should not be thrown away. Motions judges have been mandated to keep the case through to trial, even if they dismiss the motion for summary judgment, so that the institutional knowledge gained by the judge is not lost. Motions judges are now expected to assume a case management role over these matters, which includes making orders to expedite and focus the remaining steps in the action and making orders that narrow the true issues to be decided.

The Supreme Court of Canada's conclusions differed significantly from the Ontario Court of Appeal's previous interpretation and application of the 2010 amendments to the summary judgment rule. The Court of Appeal had held that summary judgment was only available when a judge could "fully appreciate" the evidence as if the judge were hearing the evidence at a trial. This interpretation of the amendments to the rule had tilted the balance in favor of trials as the preferred method of dispute resolution and was seen by many as emasculating the very purpose of the amendments, which was to make summary judgment more available. The Supreme Court disagreed with the Court of Appeal's interpretation and application of the amendments, recognizing that in the modern day, a trial is often neither realistic nor desirable.

Analysis and Future of Summary Judgment – Easier for the Right Types of Disputes

Based on the Court's comments regarding proportionality, efficiency of the legal system, and the desire for enhanced access to justice, cases involving relatively small amounts of money in dispute between the parties appear to be ripe for summary judgment. In addition, cases with simple legal or factual issues are good candidates for summary judgment, even where some oral testimony is required or there is a key credibility issue. However, oral evidence and credibility disputes will have to be discrete and manageable in order for summary judgment to be an effective alternative method of dispute resolution.

It will be interesting to see how the legal community and the courts respond to the Supreme Court's guidance, which has the potential for a "cultural shift" in how cases are decided in Ontario. It remains to be seen as to whether the decision will have the desired effect of increasing access to justice and decreasing delay and costs.

Original Newsletter(s) this article was published in: Commercial Litigation Update: March 2014

Footnote

1. 2014 SCC 7.

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 Mondaq.com.

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

Authors
Aaron Grossman
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
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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