• Supreme Court Empowers Summary Judgment Motion Judges
  • January 15, 2015
  • Law Firm: Perley-Robertson Hill McDougall LLP/s.r.l. - Ottawa Office
  • In its January 2014 decision in Hryniak v. Mauldin[1] the Supreme Court of Canada sought to further clarify both the test for summary judgment and a judge’s powers on a motion for summary judgment.

    The Court explicitly stated that access to justice is a real concern and that “the conventional trial no longer reflects the modern reality and needs to be re-adjusted”. What is required for many disputes, according to the Supreme Court, is an alternative model of adjudication that is “no less legitimate than the conventional trial”. Therefore, the Court called for a “shift in culture” to drive matters towards processes that are “proportionate, timely and affordable”.

    To effect this change in culture the Supreme Court set out the following principles to guide motions for summary judgment:[2]

    1. summary judgment motions must be granted whenever there is no genuine issue requiring a trial;

    2. 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:

    a) allows the judge to make the necessary findings of fact,

    b) allows the judge to apply the law to the facts, and

    c) is a proportionate, more expeditious and less expensive means to achieve a just result.

    3. the Court of Appeal for Ontario “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”; and

    4. the powers to weigh evidence, evaluate credibility, draw reasonable inferences and hear oral evidence are presumptively available under the summary judgment rule.

    The Court then helpfully set out the following two part procedural “roadmap” for deciding summary judgment motions:[3]

    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.

    Further, the Court provided even more guidance in terms of “controlling the scope of a summary judgment motion” and “salvaging a failed motion for summary judgment”. In particular:[4]

    Counsel should make use of Rule 1.05, which allows for a motion for directions, to manage the time and cost of the summary judgment motion.
    Motion judges should make use of the trial management powers set out in Rules 20.05(a) through (p) to salvage a failed or partially successful motion for summary judgment. Using these powers the Court may:
    […] set a schedule; provide a restricted discovery plan; set a trial date; require payment into court of the claim; or order security for costs. The court may order that: the parties deliver a concise summary of their opening statement; the parties deliver a written summary of the anticipated evidence of a witness; any oral examination of a witness at trial will be subject to a time limit or; the evidence of a witness be given in whole or in part by affidavit.

    • Motion judges should look to the summary trial as a model (permissible under Rule 20.05(2)), particularly where affidavits filed could serve as the evidence of a witness, subject to time-limited examinations and cross-examinations.
    • Judges dismissing summary judgment motions should remain seized of the matter for trial, even if this requires changes to current court scheduling practices.
    Therefore, it is safe to say that in Hryniak v. Mauldin the Supreme Court took the gloves off and sought to empower motion judges to resolve disputes and/or see disputes through to the most expeditious, cost efficient and logical conclusions.

    In Harris v. Leikin Group Inc., a recent motion for summary judgment, D.M. Brown J. dismissed the motion but ordered that he remained seized of the matter and set out how a summary trial would proceed before him. The Court of Appeal upheld and confirmed the motion judge’s decision to remain seized of the matter and the related trial management directions.[5]

    What is also interesting is that, because the goal is to salvage failed motions for summary judgment, including the steps taken leading up to the motion, there is an impact on how costs are awarded on such motions. For example, Harris v. Leikin Group Inc., D.M. Brown J. ultimately did hear the summary or hybrid trial and dismissed the action altogether.[6] The defendants, who won the summary trial but had lost the initial motion for summary judgment, were awarded costs of over $1,000,000 but were not allowed to recover costs for (a) the attendance at the summary judgment motion, and (b) the preparation of the law for summary judgment – being a reduction of $24,000 from the amount requested. Otherwise, however, the bulk of the defendants costs from the motion for summary judgment (including preparation of affidavits and for cross-examinations) were all recoverable because the motion was salvaged and wound into the summary trial.

    The net result is that parties and counsel should feel more at ease bringing motions for summary judgment. If the Court of Appeal decision in Harris v. Leikin Group Inc. is followed then not only have the odds of success increased on a motion for summary judgment, but the potential cost consequences and inefficiencies of a failed motion have also been significantly reduced as the Courts have been directed, and appear ready, to salvage what they can.