Following up on last week's post about a recent Ontario Court of Appeal decision, in which the Court made effective use of summary judgment on a wrongful dismissal claim, this post takes a more in depth look at the use of summary judgment motions as a useful litigation tool in employment law cases and other matters following the recent Supreme Court of Canada ("SCC") Decision in Hryniak v. Mauldin ("Hyrniak").
The Hryniak Decision
The Hryniak decision addressed the purpose of summary judgment motions, and the interpretation of amendments made to the Ontario Rules of Civil Procedure (“Rules”) in 2010 to improve access to justice. These reforms were aimed at loosening the restrictions on motions for summary judgment and offered significant new tools to judges, allowing them to adjudicate more cases by way of summary judgment. Specifically, since 2010, motion judges have been able to weigh written and oral evidence, evaluate credibility and draw reasonable inferences.
Hryniak involved a successful motion for summary judgment in an action for civil fraud. The SCC found that the motion judge had not erred in granting a summary judgment. The Court noted that the civil justice system was founded on the principle that adjudication must achieve a fair and just result. The concept of proportionality is central to this principle, meaning that the best forum for resolving a dispute is the one that best reflects the nature of dispute and the interests involved without incurring unnecessary expense or delay. Summary judgment motions and the range of results that may flow from such motions provide an opportunity for simplified pre-trial procedures that are tailored to the needs of a particular case, and should promote access to justice.
Keeping these principles in mind, the Court found that summary judgment should be granted when there is no genuine issue requiring a trial, and the judge is able to reach a fair and just determination on the merits.
Even in cases where there appears to be a genuine issue requiring a trial, the Court held that the motion judge should then determine if the need for a trial can be avoided by using his or her powers under Rule 20.
The Court stated that there will be no genuine issue for trial if the motion judge is able to reach a fair and just determination on the merits. This will be the case where the process:
1) allows the judge to make the necessary findings of fact,
2) allows the judge to apply the law to the facts, and
3) is a proportionate, more expeditious and less expensive means to achieve a just result.
"Fair and just" has replaced the "full appreciation" test developed by the Ontario Court of Appeal.
The Court also expressed the view that where a motion for summary judgement fails, the motion judge should remain seized of the matter, and manage it up to and including trial, to minimize the waste of time and expense related to the motion and take advantage of the investment of time and effort the motion judge will have made in becoming familiar with the case.
Will summary judgments be a useful tool for litigation going forward?
The Supreme Court’s decision in Hryniak likely represents a considerable expansion of the circumstances under which motions for summary judgment will be appropriate. Numerous questions exist about the impact of the decision however, from both a substantive and practical administrative standpoint. These include:
- Can the principles of proportionality, expediency and efficiency, which underpin the decision in Hryniak be applied to increase access to justice in a predictable way?
- Does the case provide judges and lawyers with sufficient guidance on the application of the new Rule 20 powers, and how to implement them from a practical perspective?
- What guidelines will the courts follow to determine what is "fair and just", or will this be a discretionary issue decided on a case by case basis?
- Will certain types or categories of cases be considered more suitable for summary judgment, and will the amount of the claim be a factor in this determination?
- Given the expanded summary judgment powers, including the ability to hear extensive oral evidence, how different will summary judgment motions really be from a full trial?
- How much evidence will judges require on summary judgment motions? In its decision, the SCC notes that, "on a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute".
- If a judge must remain seized of the action absent exceptional circumstances, what effect will this have on efficiency and the scheduling of matters?
- If the decision results in a flood of summary judgment motions, will the courts get more backlogged, or could this lead to a swifter resolution of actions, freeing up court time?
It remains to be seen if the new principles introduced in Hryniak will increase the likelihood of more successful summary judgment motions, and whether the parties involved will have confidence in the process.
Early example of a summary judgment decision after Hryniak
In addition to Bernier v. Nygard International Partnership ("Nygard"), which was discussed in a previous post, there have been other summary judgment motions in Ontario following Hryniak, including a recent Ontario Superior Court of Justice decision, Willoughby v. Dominion of Canada General Insurance Co. The underlying issue in this case was whether the plaintiff, Melissa Willoughby, was entitled to a “non-earner” benefit under an insurance policy issued to her by Dominion of Canada (the “Insurer”), as a result of injuries suffered in a car accident. The Insurer brought a motion for summary judgment on the grounds that there was no issue requiring a trial. It claimed that the only evidence introduced by Ms. Willoughby suggested that she did not meet the test for the benefit because she continued to engage in almost all of her pre-accident activities. It also wanted the Court to make adverse findings of credibility against Ms. Willoughby based on inconsistencies in her discovery transcripts.
In its decision, the Court noted that the Hryniak decision had outlined a new test, under which a trial is not required if a summary judgment motion can achieve a fair and just result. The motion will achieve this by allowing the judge to make the necessary findings of fact and apply the law to them, and the motion must also be a proportionate, more expeditious and less expensive way to achieve a just result than going to trial. Unlike the decision in Nygard, the Court was not satisfied that the elements of the test were met in this case, as the Insurer’s evidence did not allow the judge to make the necessary findings of fact on the issues at hand. The Court also looked at whether trial could be avoided by using its powers under Rule 20 of the Ontario Rules of Civil Procedure. It found that it could not make adverse findings against Ms. Willoughby, as the Insurer should have put any inconsistencies in her evidence to her at discovery. Further, the Court did not think a summary judgment would lead to a fair result in this case.
The new powers granted to motions judges under section 20 of the Rules are likely to increase access to justice through simplified procedures in appropriate cases. Because summary judgment motions are not something that the public is generally aware of, lawyers will almost always be the gatekeepers of whether or not a motion is made. They will need to manage a client's expectations regarding the value of a summary judgment motion in a particular case, explaining what they are, and setting out the risks and benefits involved given the uncertainty of litigation. From a litigation perspective, questions remain as to whether lawyers will warm up to the idea of pursuing summary judgment as a result of Hryniak, what the best timing for these motions will be, and whether a pending motion for summary judgment, on its own, will bring parties to the table facilitating the earlier resolution of disputes.