Canada: Pumping The Brakes On Summary Judgment

Last Updated: December 21 2018
Article by Brian Sunohara

A recent decision of the Ontario Court of Appeal may cause counsel and litigants to think twice before proceeding with a summary judgment motion.

In Mason v. Perras Mongenais, 2018 ONCA 948, the Court of Appeal stated that "summary judgment remains the exception, not the rule".

Teachings of Hryniak

Following the Supreme Court of Canada's decision in Hryniak v. Mauldin, [2014] 1 SCR 87, many lawyers have been eager to recommend summary judgment motions. The Court noted that trials have become increasingly expensive and protracted, and most Canadians cannot afford to go to trial.

The Court stated that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.

The Court held that the culture 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.

It was emphasized by the Court that the summary judgment rules must be interpreted broadly, favouring proportionality.

Although the Court recognized that the inappropriate use of summary judgment motions creates its own costs and delays, it stated that such risks can be mitigated by motion judges making use of their powers to manage and focus the process and, where possible, remaining seized of the proceedings.

Court of Appeal's Interpretation of Hryniak

In Perras, the motion judge interpreted the culture shift mandated by Hryniak to mean that trials are the option of last resort.

In particular, the motion judge indicated that the culture shift requires an understanding that judges will be deciding cases summarily as much as possible to avoid the expense and delays of the trial process that put civil justice beyond the reach of most Canadians.

The Court of Appeal disagreed, stating that "the culture shift referenced in Hryniak is not as dramatic or as radical as the motion judge would have it".

The Court of Appeal stated that the culture shift means moving away from the very restrictive use of summary judgment that had developed to a more expansive application of the summary judgment procedure.

However, the Court of Appeal indicated that there is nothing in Hryniak to suggest that trials are now to be viewed as the resolution option of last resort. The overriding principal is that summary judgment is only appropriate where it leads to "a fair process and just adjudication".


It may be argued that the Court of Appeal's decision in Perras is not fully in keeping with the spirit of the Supreme Court's decision in Hryniak.

In Hryniak, the Court strongly encouraged simplified and proportionate procedures for adjudication.

The Court stated that "the summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial".

Further, the Court stated that the evidence on a summary judgment motion need not be equivalent to that at trial, but must be such that the judge is confident that he or she could fairly resolve the dispute.

The jurisprudence has repeatedly indicated that, on a summary judgment motion, the motion judge is entitled to assume the record contains all the evidence the parties will present if there is a trial. A party must put its best foot forward.

Moreover, as outlined in Hryniak, having a "full appreciation" of the evidence that can be gained at a conventional trial is setting the bar too high, given that such a trial is not a realistic alternative for most litigants

The Court indicated that a documentary record, particularly when supplemented by the new fact-finding tools available on a summary judgment motion, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly.

It remains to be seen whether the Court of Appeal's decision in Perras will have a chilling effect on proceeding with summary judgment motions, and whether it will cause motion judges to be more reluctant to grant summary judgment.

Perhaps the best characterization of the approach to summary judgment is that of Justice Pepall in her dissenting judgment in Isaac Estate v. Matuszynska, 2018 ONCA 177:

Hryniak ushered in a new approach to summary judgment. This was at least in part a response to the need to provide for greater access to justice. Superior Court judges have answered the Supreme Court's entreaty with a huge degree of professional commitment and diligence. This is to be lauded. A major goal of summary judgment is costs savings. However, the goal is not summary judgment at all costs. There will still be some cases that ought to go to trial. Some caution must be used.

It is important for counsel to carefully analyze a case to determine whether it is truly appropriate for summary judgment.

As stated by the Supreme Court, while summary judgment motions can save time and resources, they can also slow down the proceedings if used inappropriately. The Court stressed that counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice.

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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