Summary judgment motions are brought to determine issues on
proceedings without the cost and delay of a full trial. The
issuance of the Supreme Court of Canada's decision in
Hryniak v. Mauldin, 2014 SCC 7, has provided guidance in
how such motions are to be conducted. Its message is clear: there
needs to be an increased focus on proportionality in civil
litigation, and summary judgment motions are to be used to further
Rule 20, the rule that permits summary judgment motions, was
amended in 2010. Early decisions of the Superior Court of Justice
after the amendment applied the new powers expansively. However, in
December 2011, the Ontario Court of Appeal released its first
decision on the interpretation of the amended Rule 20, and set the
tone for its application for the next two years. That decision,
which was actually one decision released for five appeals heard
together, was Combined Air Mechanical Services Inc. v.
Flesch, 2011 ONCA 764.
Combined Air introduced the "full
appreciation" test: can the full appreciation of the evidence
and issues be achieved by way of summary judgment, or can this full
appreciation only be achieved by way of a trial?1 The
Court stated that generally, a trial was required in cases with
conflicting evidence emanating from a number of witnesses or a
voluminous record, while a full appreciation could be achieved in
document-driven cases with limited testimonial evidence, or ones
with limited contentious factual issues2.
After Combined Air, Ontario courts were more restrained
in granting summary judgment motions. As a practical result,
parties who might otherwise bring a summary judgment motion thought
twice about doing so if there would be numerous affidavits or
volumes of documents, even if the legal issue was
Two of the five matters heard together in the Combined
Air appeal were further appealed to the Supreme Court of
Canada. Hryniak was one of them. In Hryniak, the
Court criticizes the cost and delay associated with civil
litigation, and calls for a "shift in culture" in the
civil justice system to ensure a fair and just process that is also
accessible, proportionate, timely and affordable.
The decision touches broadly on summary judgment motions, from
how they should be managed to the standard of review if they are
appealed. However, there are a number of points made by the Court
that will impact how summary judgment motions are approached in
There should be no presumption that a "full
appreciation" of certain evidence can only be had at trial.
There will be no genuine issue requiring a trial when the judge can
reach a fair and just determination of the merits on a motion for
To keep control over the summary judgment process, litigants
should bring preliminary motions for directions. These can
streamline the process by setting timelines and guidelines for
evidence, or can permit a responding party to seek to stay or
dismiss the motion on the basis that it is premature or improper
(ie, it will not advance the litigation or serve the principles of
timeliness and affordability).
If the summary judgment motion is dismissed, or only partly
succeeds, the motion judge should remain seized of the matter and
would then control the pretrial process and ultimately hear the
That message aligns with the tone of the judgments of the
Toronto Estates List of the Ontario Superior Court of Justice,
which has itself commented on the need for proportionality. Indeed,
the proportionality principles in Hryniak are being
implemented in Orders for Directions in matters on the Estates
List. Recently, an Order for Directions in a will challenge
proceeding cited Hryniak in limiting pre-hearing
examinations on the basis of proportionate costs and setting a
schedule to move the matter quickly.4
Timeliness and proportionality are highly relevant
considerations in estate matters, where finite estate funds can be
quickly depleted by litigation and disputes between bereaved family
members can take a heavy psychological toll. The changes called for
in the Hryniak decision, once implemented, will likely
have positive impact on the conduct of estate litigation in the
years to come.
1 para 50
2 paras 51, 52
3 paras 48-50, 56
4 Re Estate of Ireni Traitses, Deceased, 2014 ONSC
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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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