The Supreme Court only hears cases on issues of national importance. It’s small wonder, then, that the court almost never hears cases about civil procedure, a fact that makes its Jan. 23 decision in Hryniak v. Mauldin remarkable for two reasons: it’s entirely about civil procedure and it may well be the start of a profound change in the way civil disputes travel through the legal system in Canada. At the very least, the nation’s highest court has told Canada’s judges and lawyers the system is broken and it expects them to fix it.
In Hryniak (together with a companion case called Bruno Appliance and Furniture Inc. v. Hryniak), the Supreme Court heard and reversed the decision of the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, a 2012 decision that had set out the definitive test for motions for summary judgment in Ontario.
Courts make decisions based on evidence. On motions, that evidence comes from affidavits, the documents attached to them, and the transcripts of cross-examinations on them. At trial, that evidence comes from witnesses who testify. Traditionally, the court could only reconcile conflicting evidence at a trial.
However, trials tend to be long and expensive.
Summary judgment has been a feature of civil procedure for several decades. It’s a process by which the court can dispose of an action where there are no issues that require a trial for their resolution; in order words, there’s no conflicting evidence that needs to be reconciled. The idea behind the rule was to speed up the resolution of legal disputes that didn’t really need a trial.
In practice, judges interpreted the rule narrowly. More often than not, the motion judge would decide the evidence on the motion raised factual issues that required a trial.
Indeed, even after amendments to the Rules of Civil Procedure that specifically allowed judges to resolve certain conflicts in the evidence through special fact-finding tools, motions for summary judgment remained a dubious way to resolve disputes.
In Hryniak, the Supreme Court has reversed course on summary judgments.
The Supreme Court made it clear that trials are no longer the ideal way to resolve disputes. Despite its centuries of pedigree, its elaborate conventions and ceremonies, and its central place in the popular imagination as the forum to seek justice, the trial has now become a last resort.
On the contrary, summary judgment is now the preferred method for resolving legal disputes. Further, the Supreme Court has told judges they should use their new fact-finding tools aggressively and whenever they can.
And to ensure there’s no confusion about how this is to work going forward, the Supreme Court laid down a road map for the conduct of motions for summary judgment:
• The motion judge determines whether, based on the evidence led on the motion, there are any issues that require a trial. If there are no such issues, the judge must make a decision and render a judgment.
• If there are issues that require a trial, judges must next determine whether, by using the fact-finding tools, they can resolve them without a trial.
• The judge then has the discretion to actually use, or not use, those fact-finding tools. However, the Supreme Court has made it clear there should be a significant bias in favour of their use if they would make a difference.
• If the matter isn’t resolved on the motion for summary judgment, the judge nevertheless has to craft a set of orders that will send the matter on to trial in the most efficient and cost-effective manner possible.
• The Supreme Court specifically envisions that the ultimate trial wouldn’t be a traditional full-blown affair but would instead be a tightly focused process that recycles the knowledge and insight gained in the failed motion for summary judgment.
However, the significance of Hryniak goes far beyond reviving motions for summary judgment. The Supreme Court has issued a profound critique and challenge to the status quo of civil litigation in Canada. Civil litigation is broken because it has established the wrong balance: in the pursuit of justice that’s fair and just, both the bench and the bar have forgotten that it must also be timely and affordable.
And the advice is blunt. To the bar, the Supreme Court said lawyers must change their culture in favour of a litigation procedure that “facilitates rather than frustrates access to justice” because their current approach focuses too much on painstaking procedure at the expense of proportionate, timely, and affordable adjudication. Lawyers can’t depend on judges to rein them in. They must do this for themselves.
To the bench, the Supreme Court is equally clear. Judges must not shy away from making substantive determinations. On the contrary, they must use all of the tools available to them to resolve disputes with less process as long as the dispute can nonetheless be resolved fairly.
To that end, the Supreme Court has also imposed a practical requirement: a single judge is to have carriage of the matter whenever possible. Thus, if the parties seek directions as to the conduct of the motion for summary judgment, the judge who gives them should remain seized of the matter and hear the motion for summary judgment itself to ensure “the knowledge she has developed about the case does not go to waste.” Similarly, if the motion for summary judgment doesn’t dispose of the matter, the case continues with that same judge through to trial. And the Supreme Court has no sympathy for the administrative challenges that will present. In its view, “while such an approach may complicate scheduling . . . the courts should be prepared to change their practices in order to facilitate access to justice.”
The impact of Hryniak on civil proceedings will be profound, not just in Ontario but in every jurisdiction in Canada that permits motions for summary judgment (which is every province but Quebec). There will be a rush by the bar to use this newly invigorated rule. Judges, in turn, will have to seriously adjust the way they think about how they resolve actions. And the courts’ administration will have to find a way to accommodate the logistical demands of keeping judges seized of matters as they travel through the system. Time will tell whether this radical shakeup will have the desired effect of promoting timely and affordable access to the civil justice system.
Jonathan Rosenstein handles complex commercial and civil litigation at both the trial and appellate levels at Pape Barristers Professional Corp. in Toronto. He acted for one of the defendants in both cases who wasn’t directly involved with the appeals to the Ontario Court of Appeal or the Supreme Court.
