February 20, 2014

The recent decision of the Supreme Court of Canada (SCC) in Hryniak heralds a sea change in summary judgment motions in Ontario and will have a profound impact on estate litigation.

Many lawyers in Ontario have long groused that the Ontario Court of Appeal (OCA) was overly restrictive in its interpretation of summary judgment rules both before and after the rules were amended in 2010. As such, the idea that an action could be summary dismissed was, for the most part, stillborn.

At the same time, the courts and provincial law societies have long bemoaned ‎the lack of access to the courts by the middle class. The SCC has now weighed in with its decision in Hryniak by sweeping aside legal precepts that have long held sway. The underpinning of the decision is access to justice and the need for the legal system to adapt.

The SCC cited Canada’s relatively poor performance in the area of access to justice as the greatest challenge to the rule of law in Canada today.  Due to the increasing costs of litigation, not to mention the years it takes to bring many matters to trial, the SCC held that the current trial process “denies ordinary people the opportunity to have adjudication.”  The SCC concluded that a shift in judicial culture was required, one which placed greater weight on the principle of proportionality, in order to promote timely and affordable access to the civil justice system.  Summary judgment motions should be recognized as an important tool for increasing access to justice by providing a cheaper and faster alternative to a full trial

The 2010 amendments to Rule 20 of the Rules of Civil Procedure gave motion judges a wider scope of fact-finding powers.  In considering the 2010 amendments, the SCC rejected the “full appreciation test” established by the OCA as unduly restrictive.  It held that the interests of justice required equal emphasis to be given to the goals of proportionality, timeliness and affordability.

Writing for a unanimous court, Justice Karakatsanis held “The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure… In interpreting these provisions [Rule 20], 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 proportionate, more expeditious and less expensive means to achieve a just result than going to trial.  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.”

What does all this mean? According to Canada’s highest court, summary judgment motions can provide litigants with a cheaper and faster means of adjudicating their disputes.  All members of the legal community are to view such motions as a legitimate alternative to conventional trials.  Moreover, the appeal courts have been told to keep their distance, as the standard of review for most summary judgment motions is “palpable and overriding error”. Jasmine Sweatman’s January 28, 2013 blog reviews the new, broader test for summary judgment motions.

Happy Litigating in what is sure to be a brave, new world.