Canada: Motion For Summary Judgment: Can You Ever Be A Winner?

Prior to the significant changes to Ontario's Rules of Civil Procedure in 2010, winning a motion for summary judgment was considered to be somewhat of a miraculous achievement.  The former Rule 20, which governed motions for summary judgment, served to severely restrict a judge's powers, and judgment would be granted only if the moving party could demonstrate that there was no genuine issue for trial.  And almost anything could be characterized as a genuine issue for trial.  Furthermore, cost consequences for the losing party were so Draconian that most litigants would be deterred from even trying.

The changes to the Rules, generally, in 2010 signalled a legal cultural shift, the goal being to increase access to justice.  In terms of summary judgment, in particular, the intent was to elevate the likelihood of success.  The legal test was modified such that judgment would be granted if there is no genuine issue requiring trial.  In other words, unless a trial is absolutely necessary, the dispute can be resolved summarily.

To achieve the goal of greater access to justice, judges have been afforded sweeping new powers:  they are now permitted to hear and weigh oral evidence, make determinations as to credibility, and draw inferences from the evidence unless the interest of justice requires that a hearing be conducted on a full evidentiary basis (i.e. a trial).  Furthermore, cost consequences for unsuccessful litigants have been slackened: whereas the old Rule required that that the losing party pay the successful party's costs, on a full indemnity basis, the Court now has discretion to award costs, depending on the circumstances.

The governing principle is proportionality:  courts are now required to apply the Rules with a view to the importance and complexity of the matter, and a consideration of the amount in dispute.

In Combined Air Mechanical Services Inc. v. Flesch1, the Ontario Court of Appeal had its first opportunity to interpret and apply the new Rule.  Unfortunately, its interpretation was much more restrictive than legal practitioners in Ontario had anticipated or hoped.  In fact, some perceived the decision to be contrary to the legislative intent contemplated by the new Rule.

In 2014, the Supreme Court of Canada seized the opportunity to address the problem, and to clarify the application of the test for summary judgment.  In Hryniak v. Mauldin2, the Supreme Court recognized that the expense and delay of trials had the potential to prevent a fair and just resolution of a case, and sought to rectify the length and cost of trial by focalizing its opinion through access to justice concerns.  It expressly recognized that the Rules needed to be interpreted broadly to favour proportionality and fair access to affordable, timely and just adjudication of claims.

Importantly, unlike the Court in Combined Air, which was of the view that a traditional trial, with its procedural safeguards, provided greater assurances of fairness and should remain the default proceeding, the Supreme Court endorsed the notion that summary judgement was, in fact, a genuine alternative model of adjudication, and that summary judgment was no less legitimate than a regular trial, as long as certain procedural criteria were met, and should be more widely available to allow litigants access to less expensive and more timely adjudication.  The Court called for "moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case"3 , and that judges should utilize their expanded powers to ensure that disputes are resolved in an affordable and timely manner with regard to the prevailing principle of proportionality.

The Supreme Court emphasized the need for an individual assessment in each case, based on the principles outlined (access to justice, proportionality, affordability, timeliness, and fairness), as opposed to a categorical approach. 

Essentially, summary judgment will be available where the process:

  1. allows the judge to make the necessary findings of fact, and to apply the laws to the facts; and
  2. is a proportionate, more expeditious and less expensive means to achieve a just result.

The overarching message expressed by the Supreme Court is that there will be no genuine issue requiring a trial where the judge, on a motion for summary judgment, can reach a fair and just determination on the merits.

The Practical Implications of Hryniak

As a result of the Hryniak decision, the number of successful motions for summary judgment should increase, although the decision should not be viewed as disposing of the traditional trial, or as opening the floodgates.

Ensuring access to justice remains one of the greatest challenges in Canada.4 A cultural change, of the proportion envisioned by the drafters of the New Rules, will require a significant shift in thinking, even with the expressly written broader Rules at the court's fingertips.  Hopefully, it will also entail attitudinal changes towards pre-trial procedures and a movement of the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of a particular case.5 

What does this mean for insurers?  They can take comfort in knowing that motions for summary judgment are less risky, less expensive if unsuccessful, and a more viable option than before.  While such a motion will rarely be cheap – it is, essentially, a mini-trial, and requires that an insurer puts its best foot forward, and obtains expert evidence – it provides an opportunity for the dispute to be resolved at a much earlier stage in the proceedings, thus halting the incurrence of unnecessary defence costs.


1 Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.

2 Hryniak v Mauldin, [2014] SCC 7 ["Hryniak"].

3 Ibid. at para. 2-3.

4 Ibid. at para. 1.

5 Ibid. at para. 2-3.

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.

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