On June 18, 2014, the Court of Appeal for Ontario released its
decision dismissing the plaintiff's appeal in Harris v.
Leikin Group Inc., 2014 ONCA 479
("Leikin"). The decision under appeal
followed a hybrid trial that made extensive use of work product
from two earlier summary judgment motions. Leikin
is one of the first Court of Appeal decisions to interpret
Ontario's summary judgment rule in light of the Supreme Court
of Canada's recent decision in Hryniak v.
Mauldin, 2014 SCC 7
("Hryniak"), which increased the
availability of summary judgment in Ontario and specifically
endorsed the use of hybrid trials to salvage resources spent on
failed summary judgment motions.
A primary issue in Leikin was whether the trial
judge-who also served as the motions judge on the earlier summary
judgment motions-erred in adopting a hybrid-form of trial. After
dismissing the summary judgment motions, the judge issued trial
management directions providing for a hybrid trial in which the
evidence filed on the motions was to be preserved and supplemented
with further evidence at trial. In particular, the trial judge
ordered that affidavits filed on the motions would serve as
examinations-in-chief, and additional examinations and
cross-examinations would be time-limited. The trial proceeded in
accordance with these directions, and following the conclusion of
the trial, the trial judge dismissed the plaintiffs' claims in
their entirety. The plaintiffs appealed. After the appeal was
perfected but before it was heard, the Supreme Court of Canada
released its decision in Hryniak regarding the use
of summary judgment and hybrid trials.
On appeal, the appellants argued that the trial judge erred in
directing a hybrid trial because it robbed them of the ability to
control the trial narrative. This ground of appeal was rejected at
the outset on the basis that it amounted to a collateral attack on
the trial management directions. The Court held that if the
appellants wanted to challenge the directions for trial, the time
to do that was when the directions were issued and not on this
appeal. Accordingly, the appellants had no right of appeal from the
trial management order directing a hybrid trial.
However, since the correctness of the trial management order was
argued fully on appeal, the Court offered the following
observations. First, the Court found that the specific terms of the
trial judge's directions fell squarely within the language of
the summary judgment rule (Rule 20.05), which provides, among other
things, that any oral examination of a witness at trial may be
subject to a time limit and that the evidence of a witness may be
given in whole or in part by affidavit.
Second, the Court found that both the letter and the spirit of
the trial judge's directions fell squarely within what the
Supreme Court expressly contemplated in Hryniak at
Rules 20.05(2)(a) through (p). allow
the judge to use the insight she gained from hearing the summary
judgment motion to craft a trial procedure that will resolve the
dispute 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.
Finally, the Court found that the trial judge in
Leikin did exactly what Hryniak
instructs judges to do; that is, "salvage the resources that
[go] into the summary judgment motion." Having found that the
trial judge afforded the parties considerable latitude in the
presentation of their case, the Court was not persuaded by the
appellants' argument that the trial was "simply a
reconfiguration of the dismissed motion." Accordingly, the
appellants were not robbed of the ability to control the trial
narrative and the trial judge made no error in directing a hybrid
trial. The appeal was dismissed.
Significance of Decision
This decision of the Court of Appeal, which follows closely on
the heels of Hryniak, confirms that Rule 20.05
gives judges who refuse to grant summary judgment, extensive powers
to specify facts that are not in dispute and to identify the issues
to be tried, and to direct the terms on which a trial is to
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