Canada: "Hryniak v. Mauldin": Supreme Court Loosens Restrictions On Summary Judgment Imposed By "Combined Air"

In a decision that will doubtless be welcomed by the commercial bar, the Supreme Court of Canada has increased the availability of summary judgment in Ontario.

The 2010 amendments to the Ontario Rules of Civil Procedure included dramatic changes to the rule governing procedures relating to summary judgement, Rule 20. These changes were intended to make it easier to obtain summary judgment, the availability of which had become increasingly constricted by 25 years of restrictive judicial interpretation. The revised rule features a lower threshold test (moving parties need only establish that there is no "genuine issue requiring a trial") and grants sweeping new powers to judges hearing the motions (including the ability to hear and weigh oral evidence, make findings of credibility, and draw inferences from evidence) to be exercised unless the "interest of justice" requires they be exercised only at trial.

In an omnibus hearing of five cases under the new rule (known as Combined Air Mechanical Services Inc. v Flesch, 2011 ONCA 764), the Court of Appeal interpreted Rule 20's new provisions in a manner considered by many commentators to be restrictive and contrary to the legislative intent. Most controversial was the Court's imposition of a "full appreciation" test, requiring that summary judgment be refused where a judge concludes that only a full trial would afford the judge a "full appreciation of the evidence and issues" required to decide a case.

The Supreme Court's decision in Hryniak v Mauldin, 2014 SCC 7¹ is a pointed adjustment of Combined Air's focus on the primacy of the trial. Justice Karakatsanis, writing for a unanimous Court, begins by noting that trials "have become increasingly expensive and protracted" and that most Canadians "cannot afford to go to trial," calls for a "culture shift" that moves the "emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case," and describes summary judgment as an "opportunity" to craft a new model of adjudication to "reflect modern reality."

Stating that the Court of Appeal "placed too high a premium" on the 'full appreciation' of evidence that can be gained at a conventional trial," Justice Karakatsanis concludes that "summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims."

Noting that she agrees with the result of the Court of Appeal's ruling, she sets out principles for the "proper interpretation" of Rule 20., key aspects of which are:

• There will be no "genuine issue requiring a trial" where the summary judgment process
  
  
  (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
• The additional fact finding powers granted under the new rule are intended to signal that "a trial is not the default procedure."
• Evidence on a summary judgment motion "need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute."
• In assessing whether it is in the "interests of justice" to exercise the new fact-finding powers granted under Rule 20 to arrive at a judgment at the motion stage instead of insisting on a full trial, the court must consider the principle of proportionality, assessing the relative cost and speed of the motion versus trial, and the consequences of the motion for the litigation as a whole (e.g. whether the case will still have to proceed to trial regardless of whether the motion results in judgment against a single defendant on the one hand, and whether on the other hand, it is worthwhile to resolve a claim against one key party at an early stage).
• While the ideal scenario for use of the power to hear oral evidence will be one in which the evidence will be brief and from few witnesses, "there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure."

The Court sets out the following "roadmap" for deciding summary judgment motions:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [Emphasis added.]

The Court also prescribes some interesting measures for controlling the scope of motions and for "salvaging" failed motions:

• Counsel should consider seeking early judicial involvement to manage the scope of motions by bringing motions for directions under Rule 1.05. Failure to do so in more complex summary judgment motions may result in costs consequences under Rule 20.06(a).
• Judges using the powers under Rules 20.05(a) through (p) to craft trial orders after refusing summary judgment should look to the summary trial model recommended by the 2007 Osborne Report which led to the changes to Rule 20, even though that model was not adopted in the 2010 amendments to the rule.
• Judges dismissing summary judgment motions should remain seized of the matter for trial, even if this requires changes to current court scheduling practices.

One final, interesting aspect of the decision is its implicit recognition of the danger that failure to adapt court procedures to users' needs may result in courts' becoming irrelevant to consumers of its services, who may instead "simply give up on justice" or — more feasible for sophisticated commercial entities — pursue alternatives such as private arbitration, which the Court opines "is not the solution, as without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of the common law undermined."

The Court's extensive commentary on the need for proportional alternatives to full trials appears calculated to provide lasting guidance in the ongoing struggle between legislative attempts to broaden summary judgment and judicial attempts to narrow its utility. It will be interesting to see how Hryniak shapes the debate in the future.

Footnotes

1 Hryniak was one of only two cases decided in Combined Air to be appealed to the Supreme Court. The Court released its decisions in Hryniak and Bruno Appliance and Furniture, Inc. v Hryniak, 2014 SCC 8; the principled discussion of summary judgment is contained in Hryniak and is merely referenced and applied in Bruno.

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