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Summary Judgment Motions: A Culture Shift to Improve Access to Justice - By Brett Hodgins (en anglais seulement)


11 septembre 2015


Taking a lawsuit to trial has become an extremely long and expensive process; it is beyond the means of the average Canadian. Addressing this issue and improving access to justice has been the focus of many recent changes to Ontario’s Rules of Civil Procedure. In 2010, several major rule changes came into effect, including changes to Rule 20, dealing with summary judgment.

A party can apply for summary judgment to have a judge decide a case (or a particular issue) without proceeding to trial. Originally, this rule was only available for very limited and clear-cut cases of outstanding debts. In 1985 Rule 20 was amended to allow for a much broader use, by either plaintiffs or defendants. However judges were only to grant summary judgment in the clearest of cases, where “the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial.”[1] Furthermore, judges were to decide summary judgment motions on a written record, and were not permitted to weigh evidence, assess credibility, or make findings of fact. As a result, it was still only very clear cases which could succeed. If unsuccessful on a summary judgment motion, the parties then had to proceed to trial where the evidence and argument would have to be freshly presented before a new judge.

The 2010 changes to Rule 20 were intended to improve this costly and inefficient process. Judges were given more power to weigh evidence and credibility, and to make findings of fact. They could even hear oral evidence in a “mini-trial.” Yet exactly how expansive these new rules were to be wasn’t clear until the 2014 case of Hryniak v. Mauldin.[2]

In Hryniak the Supreme Court called for a “culture shift,” and urged lawyers and judges to use the new summary judgment powers broadly, in a way that was consistent with proportionality and access to justice. The Court called for common sense solutions so that parties could avoid having to go to trial whenever possible - no longer would summary judgment be available for only the clearest cases. Furthermore, the Court stated that, whenever possible, the judge who heard the summary judgment motion should also preside over the trial, so that the case need not be re-argued from scratch. This last finding may be particularly important in medical malpractice trials, in which there is usually a vast amount of complex evidence to be presented.[3]

The implications of the “culture shift” quickly became apparent in subsequent cases. Courts have noted that, although judges need a full appreciation of the facts before rendering a decision, trials need no longer be the gold standard for providing justice and fairness. If a judge can obtain a full appreciation of a case on a summary judgment motion, then the case can be fairly and justly decided at that stage.[4] Another judge has noted that there is no right to a trial in Ontario:

If the fair and just resolution of the action requires a trial, then a trial will be held.  However, it is no more in the plaintiffs’ interests than it is in the defendants’ interests to endure the cost, delay and distress of a full trial if it turns out that the case could have been resolved years earlier and hundreds of thousands of dollars cheaper on a single issue.[5]

Courts have recently clarified that they have the power to determine a question on a summary judgment motion even against the party that brought the motion.[6] For example, if a plaintiff brings a summary judgment motion asking the judge to find in her favour, the judge can not only decline to do so, but can find in favour of the defendant, dismissing the case. The goal is always to reach a fair and just final determination of the issues at the earliest possible time.

In ThyssenKrupp Elevator (Canada) Limited v. Amos[7] the Court set out the following road map of escalating steps for judges to take in summary judgment motions post-Hryniak:

  1. The Court is to consider first whether the motion provides sufficient evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
  2. Decide if the required result (to fairly and justly adjudicate the dispute in a timely, affordable and proportionate procedure) can be reached by exercising the discretion to weigh evidence, evaluate credibility of witnesses, and draw reasonable inferences from the evidence now rather than at trial.
  3. Consider exercising the discretion to order presentation of some limited oral evidence (a mini-trial).
  4. Dismiss the motion but craft a trial process while remaining seized of the matter.
  5. Only in exceptional cases where it is clearly inappropriate to remain seized of the matter should a judge dismiss without remaining seized.

How effective have the rule changes been in allowing parties to obtain a final determination on summary judgment motions? In a recent article, two lawyers attempted a statistical analysis of recent cases. After examining 217 cases, they concluded that the rate of success in summary judgment motions had increased from approximately 65% to 75%. [8] However, this analysis does not take into account the possibility that there has been a simultaneous rise in the number of summary judgment motions, as parties with less clear-cut cases attempt to have judges use their new fact-finding powers to avoid a full trial.

The impact of Hryniak on the culture of Ontario’s civil justice system has been significant, and will continue to evolve. Parties with even complex cases should now consider a summary judgment motion, which could potentially save them the cost and delay of proceeding to trial.

Brett Hodgins is a lawyer in our Litigation Law Group. He can be reached at bhodgins@perlaw.ca or 613.566.2749. To view his bio, please click here.