Catherine Gleason-Mercier, Laura Fric, Mary Paterson
Jan 27, 2014
The Supreme Court of Canada has released its much anticipated decision dealing with summary judgment motions. In a welcome outcome, the Court has lowered the bar for obtaining summary judgments, such that many parties and the court system may be able to avoid the unnecessary delays and costs that come with full blown discovery and trials.
In Hryniak v. Mauldin etc al., 2014 SCC 7, the Court recognizes that trials are not required to decide all cases and that other, less costly, forms of adjudication are equally legitimate. The Court cautions that the rule of law is threatened when ordinary citizens cannot access justice.
The Court states that the principal goal of the justice system remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible, which means proportionate, timely and affordable. To protect accessibility, the Court notes that “a shift in culture” is required.
The Court applies these principles to Ontario’s recently revised summary judgment rule and holds that:
- summary judgment motions must be granted whenever there is no genuine issue requiring a trial;
- there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination. This will be the case when the process:
- allows the judge to make the necessary findings of fact,
- allows the judge to apply the law to the facts, and
- is a proportionate, more expeditious and less expensive means to achieve a just result.
- the Court of Appeal for Ontario “placed too high a premium on the ‘full appreciation’ of evidence that can be gained at a convention trial, given that such a trial is not a realistic alternative for most litigants”; and
- the powers to weigh evidence, evaluate credibility, draw reasonable inferences and hear oral evidence are presumptively available under the summary judgment rule.
These findings, combined with the Supreme Court’s suggestion that the Court should be involved in managing summary judgment motions early in their life, increases the availability and flexibility of summary judgment motions in Ontario while also increasing the probability that a successful summary judgment motion will finally resolve the dispute.
The Need for a Culture Shift: Where We Were and Where We Need to Go
As we explained in our December 2011 Osler Update on the Court of Appeal’s decision, the pre-2010 summary judgment rule was thought to be ineffective because of jurisprudence that prohibited motion judges from evaluating the credibility of witnesses, weighing the evidence or making findings of fact.
A new Rule 20 came into force on January 1, 2010 which greatly expanded the powers of judges to weigh evidence, evaluate credibility and make findings of fact. However, judicial interpretation of this new rule was not consistent, with some cases interpreting these powers narrowly, risking making the new rule largely useless in obtaining early resolution of matters and avoiding trials.
Even though the Ontario Court of Appeal took a bolder approach to the new rule, the Supreme Court held that the Ontario Court of Appeal’s decision did not go far enough and placed too much emphasis on the benefits of a conventional trial. The question should not be whether a full trial is needed to fully appreciate the evidence, but rather, whether the added expense and delay of fact finding at trial is required for a fair process and a just result.
In this new culture, the Supreme Court directs summary judgment motion judges to assess whether they are confident they can fairly resolve the dispute before them. As the Court notes, the “standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”
To achieve this new culture, the Supreme Court directs parties and the courts to manage the motion at the early stages, in order to control its scope. The Court also states that the motion judge should remain seized of the matter. It remains to be seen how Ontario’s already strained judicial resources will be able to implement these practical suggestions.
Authored by Laura Fric, Mary Paterson, Catherine Gleason-Mercier