The Ontario Superior Court of Justice has provided guidance on
the significant implications of the Supreme Court of Canada's
(SCC) decision in Hryniak v. Mauldin, in which the SCC
held that the new summary judgment rules fundamentally change
litigants' procedural rights. In Baghbanbashi v. Hassle
Free Clinic, the Honourable Justice F. L. Myers held that
there is no longer a right to a trial in civil litigation in
Ontario as a result of Hryniak. While the outcome of the
particular case is not significant for litigants generally, the
Court's comments regarding the "cultural shift" of
litigation and the effect on parties' procedural rights
post-Hryniak is worth considering when assessing whether
or not to pursue litigation.
Baghbanbashi involves an ongoing claim for medical
negligence. The plaintiff alleges that she contracted a
debilitating disease from hepatitis B vaccinations she received at
the Hassle Free Clinic. She argues that the medical care she
received was negligent because she was not informed of the risks
associated with the vaccinations. The defendant Dr. Mirza R. Virani
is also accused of negligently failing to diagnose the plaintiff
's symptoms before her second vaccination.
The defendants argue that the hepatitis B vaccination could not
have caused the plaintiff 's debilitating disease. Dr. Virani
brought a motion for summary judgment on the issue of causation,
claiming there is "no genuine issue requiring a trial" on
the basis that there is no scientific evidence to support
causation. At a case conference before the summary judgment motion,
the parties disagreed on the scope of the issue to be resolved and
the extent of the evidence required.
In his decision, Justice Myers provided the following guidance
on the state of litigants' procedural rights in Ontario
"The traditional notion that only a trial can provide civil
justice led to a crisis whereby most Canadians could not afford
civil trials and hence were being denied access to justice.
Moreover, delays were so acute that even when trials were
affordable, few litigants obtained speedy justice" (para.
"There is no right to a trial in civil litigation in
Ontario. If the fair and just resolution of the action requires a
trial, then a trial will be held. However, it is not more in the
plaintiffs' interests than it is in the defendants'
interests to endure the cost, delay and distress of a full trial if
it turns out that the case could have been resolved years earlier
and hundreds of thousands of dollars cheaper on a single
issue." (para. 20)
"Summary judgment is not limited to cases where facts are
not in dispute or to the clearest of cases or to self-evident
issues of law." (para. 22)
"Under Hryniak, courts and all users of the civil
justice system have been required to undergo a cultural shift. The
goal remains the same - ensuring a fair and just process that
permits the judge to find the facts necessary to apply the law so
as to resolve civil disputes. But as Karakatsanis J. noted [in
Hryniak], "... that process is illusory unless it is
also accessible - proportionate, timely and affordable."
After reviewing the "roadmap" the SCC provided in
ThyssenKrupp Elevator (Canada) Limited v. Amos, Justice
Myers held that judges deciding a summary judgment motion may now
exercise discretion to weigh evidence, evaluate credibility of
witnesses and draw reasonable inferences from the evidence without
a trial. If this is not sufficient, judges may exercise discretion
to order the presentation of some limited oral evidence, a process
known as a "mini-trial". It is only when these powers are
not sufficient to reach a just result that a full traditional trial
will be held.
Key Points for Canadian Companies
The Court's ruling in Baghbanbashi further
demonstrates that the cultural shift the SCC envisioned in
Hryniak is continuing.
This cultural shift has important implications for businesses
considering litigation in Ontario. It is much more likely that the
contemplated dispute can be resolved more quickly and less
expensively than in the past for two reasons: first, the cultural
shift means that a court is more likely to determine the case on
its merits without a full-fledged trial; and, second, the
parties' "day in court" should now occur more
quickly, meaning the prospect of an earlier settlement is more
likely. In addition, defendants must be cognizant that tactics for
delaying the process will be less effective. In the end, the
cultural shift should make litigation more economically viable for
resolving many corporate and commercial disputes.
The content of this article does not constitute legal advice
and should not be relied on in that way. Specific advice should be
sought about your specific circumstances.
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