Thursday, February 6th, 2014
Hryniak v Mauldin: The Rallying Cry of Access to Justice
The Supreme Court on Summary Judgment
By Patrick Monaghan and Maria Abdoullaeva
We discussed the Supreme Court’s long-awaited decision on the interpretation of Ontario’s new summary judgment rule at our Friday lawyers’ breakfast last week. Summary judgment proves to be a topic that ignites controversy amongst advocates, and was good fodder for conversation. Below, Maria provides a brief background to the decision and an analysis of the points on which the Supreme Court departed from the Ontario Court of Appeal’s decision in Combined Air, previously the leading authority. Patrick, a new call when summary judgment first arrived in this jurisdiction, then shares some of his observations and concerns.
A. BACKGROUND TO THE DECISION
Hryniak v Mauldin, 2014 SCC 7 is the Supreme Court of Canada’s pronouncement on the interpretation of Ontario’s summary judgment rule.
Rule 20 of the Rules of Civil Procedure, RRO 1990, Reg 194 requires a judge to grant summary judgment where there is no genuine issue requiring a trial. Amendments in 2010 gave a motion judge new “fact-finding powers” to weigh the evidence, evaluate the credibility of a deponent, draw any reasonable inference from the evidence, and order oral evidence, unless it is in the interests of justice for such powers to be exercised only at trial. Following the 2010 amendments came a slew of motions testing the new powers, and in 2011 the Court of Appeal reviewed five of these decisions in Combined Air Mechanical Inc v Flesch, 2011 ONCA 764. Hryniak is a consideration of one of those five cases considered by the Court of Appeal. Note that second case, Bruno Appliance and Furniture, Inc v Hryniak, 2014 SCC 8, was also heard by the Supreme Court.
Access to Justice is the rallying cry of the Supreme Court in the Hryniak decision. It is identified as the greatest challenge to the rule of law in Canada today as trials have become increasingly expensive, protracted, and unaffordable. In the Supreme Court’s view, a culture shift is required to promote timely and affordable access to the civil justice system, including simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the specific case.
B. FIVE WAYS IN WHICH THE SUPREME COURT OF CANADA DIFFERS FROM THE COURT OF APPEAL ON SUMMARY JUDGEMENT
1. Interest of justice: full appreciation vs. proportionality, timeliness and affordability
In Combined Air, the Court of Appeal contrasted the trial dynamic – where parties have virtually unlimited ability to present the evidence in the order and to the extent of their choosing – as opposed to the summary judgment motion which is generally decided on the written record. It held that a judge, in deciding whether to exercise the powers in Rule 20 and grant summary judgment, must ask: “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?”
The Supreme Court said that the Court of Appeal placed “too high a premium” on the full appreciation of evidence that can be gained at a conventional trial, since it is not a realistic alternative for most litigants. The interests of justice, it held, cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. In the Supreme Court’s 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 a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.”
2. The power to hear oral evidence
In Combined Air it was stressed that it is the motion judge, not counsel, who maintains control over the extent of the oral evidence to be led and the issues to which evidence is to be directed. In the Court of Appeal’s view, the discretion to order oral evidence cannot be used to convert a summary judgment motion into a trial. For counsel to suggest that oral evidence is required amounts to an admission that the case is not appropriate for summary judgment. The Court of Appeal held that a party is not entitled to enhance the record it has placed before the court, which was widely understood to mean that only the motion judge could instigate the hearing of oral evidence.
In contrast, the Supreme Court held that the power to order oral evidence should be employed when it allows a judge to reach a fair and just adjudication on the merits. It also appeared to suggest that counsel may seek to supplement the written record by leading oral evidence:
Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a “will say” statement or other description of the proposed evidence, so that the judge will have a basis for setting the scope of the oral evidence.
The Supreme Court also allowed that there will be cases where extensive oral evidence should be heard on the motion for summary judgment.
3. Controlling the scope: the motion for directions
The Court of Appeal in Combined Air noted that a party faced with a premature or inappropriate summary judgment motion has the option of moving to stay or dismiss the motion by way of a motion for directions pursuant to Rules 1.04(1), (1,1), (2) and 1.05.
The Supreme Court agreed on that point but also added that parties can bring motions under Rule 1.05 for directions with regard to timelines for filling affidavits, length of cross-examinations, and the nature and amount of evidence that will be filed. In fact, it advised that the failure to bring such a motion where it was evident the record would be complex or voluminous may be considered in dealing with cost consequences.
4. Salvaging a failed summary judgment motion
Although not explicitly provided for by Rule 20.05, the Supreme Court held that where a summary judgment is refused or granted only in part, the judge has the power to order a summary trial as in the Simplified Procedure under Rule 76, whereby evidence is adduced mostly by affidavit, and cross-examinations, re-examinations and oral submissions are time-limited.
It also held that where a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, she should also seize herself of the matter as the trial judge. It advised that courts should be prepared to change their current scheduling practices in order to facilitate access to justice.
5. The standard of review: correctness vs. palpable and overriding error
The Court of Appeal in Combined Air concluded that the determination of whether there is a genuine issue requiring a trial is a legal question, reviewable on a correctness standard.
The Supreme Court disagreed and held that whether there is a genuine issue requiring a trial is a question of mixed fact and law which should not be overturned absent palpable and overriding error. Similarly, the motion judge’s decision whether to exercise the new fact finding powers is a question of mixed fact and law.
C. MONAGHAN’S OBSERVATIONS: THE LONGER VIEW
Summary judgment is good fodder for conversation among advocates, and has been since the Ontario Rule changes in 1985 introduced the modern approach to judgment without trial in this jurisdiction.
Counsel and the courts were quick from the outset to engage on the issue of the circumstances where summary judgment was appropriate, and the epic battles on this topic often took on a measure of importance that dwarfed the actual merits of the issues between the parties.
Practitioners developed an entirely new vocabulary as they thrusted, feinted and parried over whether a given situation was suitable for summary judgment. The cases cascaded, one after the other and often to the Court of Appeal, creating and refining the vocabulary, importuning the court to “take a hard look at the merits”, but not issue judgment if there is a “genuine issue of credibility” since the court would “never assess credibility.” Respondents, meanwhile, should not be complacent, and must “lead trump or risk losing.”
Eventually, the Ontario jurisprudence settled into a fairly conservative view, with some tweaks along the way to the Rule and its interpretation culminating with the Combined Air decision in our Court of Appeal. Summary judgment was permitted provided that a full appreciation of the evidence was available, in order to preserve the quality of the decision making. The thinking was, summary judgments are well and good, but only where the process will yield a result as good as would have been achieved at trial. Meanwhile, the issue of whether summary judgment was appropriate was a question of law, preserving appeal routes and allowing for the correction of error.
The 2010 amendments to the Rule, and the Court of Appeal’s interpretation, allowed for the limited use of live testimony, at the motion judge’s demand, to clarify brief, but contentious factual issues, enabling the motion judge to achieve that full appreciation.
Any advocate who has been there will tell you that getting to the truth of a matter is far more simply and convincingly accomplished through live direct and cross examination as opposed to citing from affidavits and transcripts. To answer the need for context in contract cases, the need for flexibility and the ability to adapt to new and changing evidence in damages cases, or to address the standard of care and breach issues in negligence cases, viva voce evidence is far easier, more effective and comprehensive.
One might observe that the Supreme Court of Canada, mindful of the expense of trials, has radically lowered the threshold in terms of the types of situations where summary judgment will be available, seemingly less concerned with the quality of decision making than with the expense of getting there. The process is then insulated from appeal by the determination by the Supreme Court that the decision as to whether there is a genuine issue requiring a trial will not be overturned absent palpable and overriding error (read: almost never). Expedience rules over full appreciation. Justice must be rationed in order to be achieved.
Although nowhere near as sweeping a change as the introduction of summary judgement in the first place, our Supreme Court has made a significant effort here to make this process more available and more commonly used.
Time will allow us to know whether there is going to be any gain in accessibility to justice resulting from these changes to summary judgment practice, and whether any such gains are offset by a decrease in the quality of judicial decisions wrought by the decreased quality of evidence before the court.
For more information on this topic, or others, please contact Patrick Monaghan at firstname.lastname@example.org.
This blog entry has been placed on our website to inform readers in a general way of the authors’ view of the law at the time of its presentation. It is not intended as legal advice and no reliance may be placed on its contents. Some principles of law or procedure may have changed and may no longer be applicable since its publication. The authors and Monaghan Reain Lui Taylor LLP disclaim any liability arising from reliance on any part of this blog entry.Category: Update.