Monday, January 27, 2014

The Supreme Court's "Culture Shift" - Is the Civil Trial Extinct?

In 2010, Ontario amended the process for 'summary judgment' - a motion to dispose of the litigation, one way or another, without a trial.  In the past, it was highly restricted, limited to cases where there was no real dispute in the evidence.  Following the recent changes, judges now have broader powers to assess conflicting evidence on summary judgment motions and even to hear oral evidence if necessary, and summary judgment is appropriate where there is no issue "requiring a trial".

In the Hryniak v. Mauldin case (and related cases), the interpretation of these changes has been working its way up through the courts, until last week it was decided by the Supreme Court of Canada.


I'm not going to go into detail on the underlying facts of the litigation - it's a complex case involving allegations of theft and fraud of millions in an investment financing scheme.  The original summary judgment motion involved affidavits from 18 different witnesses, 28 volumes of evidence, and four days of oral argument.  The motions judge, in a 269 paragraph decision, granted summary judgment against Mr. Hryniak, though dismissed it against other defendants.

The Court of Appeal allowed the appeal, concluding that a motions judge needs to have a "full appreciation" of the evidence.

The Supreme Court's decision, authored by Justice Karakatsanis, agreed with the Court of Appeal that the Hryniak case was not appropriate for summary judgment, but significantly disagreed with the Court of Appeal's reasoning.

Access to Justice and Proportionality

Few will be surprised to hear that the Supreme Court is concerned by the cost of justice, and much of Justice Karakatsanis' decision was an explanation and illustration that "ordinary Canadians cannot afford to access the adjudication of civil disputes", and the resulting problems.  The Court goes so far as to say that "rule of law is threatened".

There are a number of particularly astute observations:  The fact that the cost of a full trial is out of reach for most Canadians is more-or-less self-evident at this point.  The result is that most matters settle, and while settlement is usually regarded as a good thing, Justice Karakatsanis makes a useful yet seldom-stated critique:  "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."  Completely true.

Alternative processes are noted, such as private arbitration and self-representation.  Self-representation "often creat[es] further problems due to their lack of familiarity with the law", and private arbitration - while it may be appropriate as between particular parties - is not "an accessible public forum for the adjudication of disputes", which is necessary for rule of law and the development of the common law.

One of the running themes through the decision is proportionality.  "If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result."

The Supreme Court accordingly argued that a "culture shift" is necessary away from the traditional trial; that whether or not justice is done does not turn on whether or not the 'virtues' of a full trial are achieved.  In doing so, it completely rejected the "full appreciation" test adopted by the Ontario Court of Appeal.
Focussing on how much and what kind of evidence could be adduced at 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.
Furthermore, the Court puts a great emphasis on the new power of a motion judge to hear oral evidence unless it is in the "interest of justice" that such powers be exercised only at trial.  And it's a broad interpretation as to the "interest of justice", in light of the complexity of the issues, the relative cost and speed of proceeding by way of summary judgment as opposed to a full trial, proportionality, and the consequences of the motion in the litigation on the whole.

The evidence on a summary judgment motion "must be such that the judge is confident that she can fairly resolve the dispute"; but the Court highlights that a documentary record, when supplemented by the new powers available to the motion judge, "is often sufficient to resolve material issues fairly and justly"...and moreover, "when the use of the new powers would enable a judge to fairly and justly adjudicate the claim, it will generally not be against the interest of justice to do so."  These powers, while discretionary, are "presumptively available, rather than exceptional".  Of course, those powers are there not to take the place of a trial, but rather to assist in the determination of whether or not a trial is necessary.

The Court goes on to explain the "roadmap" for deciding a summary judgment motion.

First, a motion judge should evaluate whether or not she can resolve the issues without using the new fact-finding powers available.  If she cannot, and there appears to be a genuine issue requiring a trial, then she must turn her mind as to whether or not the need for a trial can be avoided by use of the new fact-finding powers.

As well, even when a motion for summary judgment fails, the judge may make other orders to streamline the litigation moving forward, to bring the matter to trial in the most cost-effective and timely manner possible.  Perhaps more importantly, "in the absence of compelling reasons to the contrary, [the motion judge] should also seize herself of the matter as the trial judge."  That's a big deal.


Civil trials are relatively rare already.  And while the Hryniak case remains an example of a rare case requiring a trial, the framework laid out in this decision will send very large numbers of other cases to summary judgment motions - probably including most wrongful dismissal actions.

I've posted about several other wrongful dismissal actions decided on summary judgment in the past; it can be a very expeditious way of dealing with a matter.  The case of Pegus v. Ecorite Distributors Ltd. comes to mind as a decision very reflective of the 'proportionality' concerns raised by the SCC in Hryniak.  (In that case, there was a motion for summary judgment based on 'deemed admissions' by the employer in a low-dollar-value case which had been pending for three years.  The employer sought to withdraw the deemed admissions, and Justice Gray permitted said withdrawal, but proceeded to decide the issues in dispute anyways and grant summary judgment.)

I suspect that we'll be seeing a lot more summary judgment motions in the days to come.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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