Happy Trails and Happy Trials: Supreme Court of Canada Rules On the Test for Summary Judgment

 Today’s Supreme Court of Canada decisions on the summary judgment appeals in Hryniak v. Mauldin, 2014 SCC 7 and  Bruno Appliance and Furniture, Inc. v. Hryniak2014 SCC 8  offer a somewhat less than “full appreciation” of the test summary judgment established by the Court of Appeal for Ontario. [See my backgrounder on the Court of Appeal for Ontario’s “full appreciation” test  here.] 

At the outset,  Karakatsanis J.  for the unanimous panel (McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, and Wagner JJ. concurring) dismissed both appeals, albeit the Court differed on the scope and application of the “full appreciation” test.

In Hryniak v. Mauldin, Justice Karakatsanis outlines the general principles for summary judgment and identifies the judicial balancing act of ensuring access to justice (“A2J”) and upholding the Rule of Law (“ROL”) as follows:

[1]                              Ensuring access to justice is the greatest challenge to the rule of law in Canada today.  Trials have become increasingly expensive and protracted.  Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.  Without an effective and accessible means of enforcing rights, the rule of law is threatened.  Without public adjudication of civil cases, the development of the common law is stunted.

[2]                              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.

[3]                              Summary judgment motions provide one such opportunity.  Following the Civil Justice Reform Project: Summary of Findings and Recommendations (2007) (the Osborne Report), Ontario amended theRules of Civil Procedure, R.R.O. 1990, Reg. 194 (Ontario Rules or Rules) to increase access to justice.  This appeal, and its companion, Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, address the proper interpretation of the amended Rule 20 (summary judgment motion).

[4]                              In interpreting these provisions, the Ontario Court of Appeal placed too high a premium on the “full appreciation” of evidence that can be gained at a conventional trial, given that such a trial is not a realistic alternative for most litigants.  In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[5]                              To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

[6]                              As the Court of Appeal observed, the inappropriate use of summary judgment motions creates its own costs and delays.  However, judges can mitigate such risks by making use of their powers to manage and focus the process and, where possible, remain seized of the proceedings.

[7]                              While I differ in part on the interpretation of Rule 20, I agree with the Court of Appeal’s disposition of the matter and would dismiss the appeal.

The Court  speaks to the issues of inherent systemic delays, costly litigation and chronic government underfunding as  factors that undermine the civil justice system:

[23]                          This appeal concerns the values and choices underlying our civil justice system, and the ability of ordinary Canadians to access that justice.  Our civil justice system is premised upon the value that the process of adjudication must be fair and just.  This cannot be compromised.

[24]                          However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes.  The full trial has become largely illusory because, except where government funding is available,[1] ordinary Canadians cannot afford to access the adjudication of civil disputes.[2]  The cost and delay associated with the traditional process means that, as counsel for the intervener the Advocates’ Society (in Bruno Appliance) stated at the hearing of this appeal, the trial process denies ordinary people the opportunity to have adjudication.  And while going to trial has long been seen as a last resort, other dispute resolution mechanisms such as mediation and settlement are more likely to produce fair and just results when adjudication remains a realistic alternative.

[25]                          Prompt judicial resolution of legal disputes allows individuals to get on with their lives.  But, when court costs and delays become too great, people look for alternatives or simply give up on justice.  Sometimes, they choose to represent themselves, often creating further problems due to their lack of familiarity with the law.

So far, so good…until I read this slight against private arbitration:

[26]                          In some circles, private arbitration is increasingly seen as an alternative to a slow judicial process.  But private arbitration is not the solution since, without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of the common law undermined.

I’m not sure where Justice Karakatsanis is coming from, but as far as I know, parties choose private arbitration for a variety of reasons, mostly for the operative word “private”. Some litigants do not relish having their disputes being publicized. Others are bound by contractual dispute resolution clauses that are entered into, for the most part, consensually. Some parties choose private arbitration because it is faster, more efficient, and relatively cost-effective.

Ultimately, it’s all about choice. Conversely, the civil justice system is rarely about choice, or, more accurately, it’s about asymmetrical choice: the plaintiff sues the defendant, not the other way around. The defendant has no choice but to defend the action in the courts.

Bear in mind that alternative dispute resolution (“ADR”) includes mediation and conciliation, as well as arbitration. Rather than frame the policy choices for access to justice as a zero-sum game, perhaps the Court should have focused on why summary judgment under Rule 20 needed an overhaul in the first place. Recall that the Rule 2o test for summary judgment was amended following the Osborne Report recommendations from whether the case presents “a genuine issue for trial” to whether there is a “genuine issue requiring a trial”.

Frankly, I still fail to see the difference, but whatever may be the fact-finding role of the motion judge on a summary judgment motion, the likelihood is that the analytical exercise will still require careful scrutiny of the pleadings and the evidentiary record. It remains to most a futile exercise to bring a summary judgment motion before examinations for discovery, yet the historical antecedents for summary judgment are premised on vetting unmeritorious claims that eschew the necessity of a full trial. The Court seems to favour a “mini-trial” approach when applying the “full appreciation” test in the “interests of justice”:

[56]                          While I agree that a motion judge must have an appreciation of the evidence necessary to make dispositive findings, such an appreciation is not only available at trial.  Focussing on how much and what kind of evidence could be adduced at a trial, as opposed to whether a trial is “requir[ed]” as the Rule directs, is likely to lead to the bar being set too high.  The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability.  Otherwise, the adjudication permitted with the new powers — and the purpose of the amendments — would be frustrated.

[57]                          On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute.  A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly.  The powers provided in Rules 20.04(2.1) and 20.04(2.2) can provide an equally valid, if less extensive, manner of fact finding.

In sum, a Rule 20 summary judgment motion requires the moving party to demonstrate there is no genuine issue requiring a trial. The responding party must then lead evidence, documentary or oral, that there is a genuine issue requiring a trial. The motion judge, armed with enhanced fact-finding powers and the ability to order oral testimony, must be satisfied based on a “full appreciation” of the evidentiary record and the interests of justice that a trial is, or is not, required.

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