For many years, Ontario litigation counsel cautioned their clients against making motions for summary judgment, even when they believed that the client's case was strong, because of the expense, delay and uncertainty inherent in making such motions. Under
Ontario's Rules of Civil Procedure, summary judgment was available
where the court was satisfied that there was no genuine issue requiring a
trial. However, issues of credibility were often viewed by motion judges as "genuine"
issues that required a trial to resolve. In addition, motion judges had limited fact finding powers.
In 2010, the summary
judgment rule was amended based on the recommendations of former Associate Chief
Justice Coulter Osborne. The new rules gave a judge hearing a motion for
summary judgment the powers to weigh evidence, evaluate the credibility of a
witness and to draw inferences from the evidence. In the Combined Air
Mechanical Services Inc. v. Flesch, 2011 ONCA764, a five judge panel of the
Ontario Court of Appeal explained the effect of the 2010 amendments and
adopted a new "full appreciation test" that judges should use to decide whether
a trial was required. Under this test, the motion's judge must assess whether
a trial was necessary to enable the court to fully appreciate the
evidence and issued posed by the case. The Court of Appeal held that summary
judgment should be granted only where the benefits of the trial process are not
required to achieve a "full appreciation" of the evidence.
While the Court of Appeal meant to be helpful in articulating the "full appreciation test", motion judges were still reluctant to grant summary judgment in cases where they considered that a trial would ensure "fairness" in resolving a dispute.
In a recent decision
of the Supreme Court of Canada (Hryniak v. Mauldin, 2014 SCC 7), the
court held that a "shift in culture" in the approach to summary judgment cases
was required. The court held that, far from ensuring it, undue process and protracted trials, with
unnecessary expense and delay, could prevent "fairness" in the dispute resolution process. The court ruled that if the process is disproportionate to the nature of the dispute and the
interest involved, it will not achieve a fair and just result.
The court
recognized that the summary judgment rule was amended to improve access to
justice. However, failed or even partially successful summary judgment motions
only added to costs and delay. The court set out to address those concerns in
this case. In its decision, written by Justice Karakatsanis, a former judge of
the Ontario Court of Appeal, the Supreme Court rejected the "full appreciation
test". It held that the new fact-finding powers granted to motion judges
under the new rules may be employed on a motion for summary judgment unless it is in
the interest of justice for them to be exercised only at trial. These new powers
included hearing oral evidence, deciding issues of credibility and making findings of fact.
Justice Karakatsanis held that
the power to hear oral evidence should be employed when it allows the motion judge to
reach a fair and just adjudication on the merits and it is the "proportionate"
course of action. Where a party seeks to lead oral evidence, it should be
prepared to demonstrate why such evidence would assist the motion judge and to
provide a description of the proposed evidence so that the judge will have a
basis for setting the scope of the oral evidence.
The Supreme Court ruled that on a motion for
summary judgment under the new rules, the judge should first determine whether there is a
genuine issue requiring trial based only on the evidence before him without using the new fact finding powers. If there appears to be a genuine
issue requiring a trial, he should then determine if the need for a trial can be
avoided by using the new powers under the rules. Justice Karakatsanis held that the use of such powers will not be against the interest of justice if they
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.
Then, if summary judgment
is unsuccessful or only partially successful, the judge should make use of the
trial management powers provided in the rule and the court's inherent jurisdiction to
craft a trial procedure that will resolve the dispute in a way that is sensitive
to the complexity and importance of the issue, the amount involved in the case
and the effort expended on the failed motion.
All of this leads to the obvious conclusion that parties will make motions for summary judgment more frequently, even where they are not confident of success, with a view of taking advantage of the proportionality course of action or to utilize the court's trial management powers of the new rules if the motion fails.
Regards,
Blair
