In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada considered Ontario's civil procedure rules 20.04(2.1) and (2.2). These rules were implemented in 2010 to allow judges hearing an application for summary judgment to weigh evidence, evaluate the credibility of such evidence, and draw any reasonable inference from the evidence accepted. A judge also has the discretion to hear oral evidence from the parties.
Justice Karakatsanis, writing for a unanimous Court, described the necessity of change in civil procedure in order to ensure access to civil justice, saying:
Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This 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. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.
Keeping in mind these public policy aims of the new rules in Ontario, the Court found that the powers of a judge on summary judgment should be interpreted broadly so as to achieve proportionality between the claims of litigants and the costs of adjudication. It noted that, "ordinary Canadians cannot afford to access the adjudication of civil disputes." The requirement to go to trial in cases with disputed facts denies these people a fair adjudication of the dispute.
The changes to the summary judgment rule in Ontario were brought about in response to a report commissioned by the Ontario Government with the goal of increasing access to justice and reducing costs to litigants. The test for summary judgment was changed from determining if there is a genuine issue for trial to determining whether there is a genuine issue requiring a trial. Justice Karakatsanis took a purpose approach to the new test, stating:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the 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 Court noted that the evidentiary requirements should not be too onerous. Often, a documentary record will be sufficient to determine the material issues in a just manner. The fact finding tools provided by the new rules, although more expeditious than those found in a traditional trial, are no less valid for the purpose of fact finding. The Court also noted that, even where the application for summary judgment is rejected, these tools allow the chambers judge to define the issues to be tried and send those issues to trial in an expeditious manner.
Given the whole-hearted endorsement of the Supreme Court of Canada for Ontario's new rules on summary judgment, and the ever-increasing burden on the Courts, it seems that the trend towards summary determination of civil disputes will continue. There are many salutary features to such determinations, both from an access to justice perspective and the potential for an increase in judicial economy. Also, as the Court notes, quicker and cheaper access to justice may soothe the rash of self-represented litigants that currently afflicts the justice system. Finally, the availability of summary judgment in a broader range of cases will level the playing field in negotiations between parties with unequal means.
Should we be looking for other provinces to follow Ontario's lead in implementing further changes to allow the summary disposition of civil claims? Expanding the interlocutory powers of the courts to determine simple matters appears, at this stage, to have the potential to transform the civil justice system.
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.
