SUPREME COURT OF CANADA CLEARS THE WAY FOR SUMMARY JUDGMENT MOTIONS

The Supreme Court of Canada in the recent Hryniak v. Malden decision released in January of this year has broadened the availability of summary judgment motions for civil litigation in Ontario.

WHY IS THIS IMPORTANT?

With civil litigation being relatively slow and expensive, and becoming more so over time, anything that speeds up and hence makes less expensive the process for people to have access to civil justice is important.

Scarce judicial resources are handed out firstly to criminal cases, where serious charges can be thrown out if the trial does not take place within a reasonable period of time, and next to family cases where the interests of vulnerable children and spouses may be at risk.

Civil litigation – often dealing with civil debts and other claims, has tended to take a backseat to its more urgent and glamorous cousins.

HOW DO THESE PROBLEMS ARISE?

The courts and the Legislatures attempt to promote fairness and justice. This has been done in part by eliminating trial by ambush by requiring pre-trial disclosure of evidence before a civil case comes to trial. This is accomplished through examinations for discovery and production of documents relevant to the case at hand.

With the twin factors of scarce judicial resources and greater pre-trial disclosure, the process has bogged down. Add in rising costs with respect to legal fees and you get the result that there has been a growing number of parties who have chosen to represent themselves in civil proceedings.

SUMMARY JUDGMENT INTRODUCED

The judicial system has not been inactive in responding to these challenges. As far back as 1985 the Rules of Civil Procedure were amended to allow for summary judgments. This provided that after the pleading stage of the lawsuit when the claims and defences have been set out, a party could bring a motion to the court essentially stating that a full trial was not required as the matter could be resolved simply by reviewing the documentary record – the documents spoke for themselves.

One would have thought that with a civil justice system creaking under a heavy case load, people becoming more litigious, and not enough judicial resources to go around, that the civil bench and bar world have fully used this tool to its greatest advantage.

This did happen to a certain extent. However, if there was any credibility issue on the facts, then that would have to be decided at a classic, traditional trial where the judge could observe the witnesses and come to a conclusion as to who was telling the truth and who was not.

Consequently, the system continued to labour under a load that exceeded the capacity of the system to deal with that many civil cases.

FURTHER REFORM

Following the recommendations of the Osborne report of 2007, Rule 20 dealing with summary judgments was amended in 2010 so as to now specifically allow the judge hearing the motion to weigh the evidence, evaluate the credibility of the people filing affidavits, and draw reasonable inferences from the evidence – things that were not done under the prior version of Rule 20. A new “Mini-Trial” was also introduced to be available where credibility issues required Oral Evidence in order to be resolved.

JUDICIAL INTERPRETATION: COMBINED AIR CASE

In December of 2011 the Ontario Court of Appeal gathered together five recent decisions rendered under the new, updated Rule 20 and gave some guidance to the profession and the Bench on how the new parts of Rule 20 should be interpreted. The court ruled that a judge hearing such motion should apply the “full appreciation test” assessing whether the full trial process was necessary to enable the court to fully appreciate the evidence and issues posed by the case.

Certain factors would suggest the need for a full trial, such as:
a)    the evidentiary record on the motion was voluminous;
b)    many witnesses gave evidence;
c)    different theories of liability were advanced against each of the defendants;
d)    numerous findings of fact were required to decide the motion;
e)    credibility determinations lay at the heart of the disputes, and the evidence of the major witnesses conflicted on key issues; and,
f)     assessing credibility was made more difficult by the absence of reliable documentary yardsticks.

The question of whether a case can be decided on an interim motion, as opposed to after a full trial, at least in theory, is not a terribly complicated question.

There are a spectrum of cases. At one extreme end is a relatively simple case where there are clear documents, or other facts that the parties do not disagree about, that simply need a judge to interpret the law with respect to these agreed set of facts.

At the opposite end of the spectrum is a case where the facts are hotly contested, with the potential results being very divergent depending on what facts are accepted, and there is little or no documentation to back up either of the conflicting versions. A classic “he said – she said” type of case.

The latter would be the type of dispute that a trial is specifically designed for, and which is required for a fair adjudication upon the merits.

Consequently, the factors that the Court of Appeal gave were simply making a list of the kind of factors that a prudent judge would take into account to determine whether a full trial would be required.

THE SUPREME COURT WEIGHS IN

But the Supreme Court of Canada went further when it heard the appeal of the “Combined Air” Ontario Court of Appeal decision (under the Hyrniak v. Malden name – one of the five cases decided together).

It stated that a “full appreciation” of the evidence test was still too high a standard to apply in determining summary judgment motions. Given the delay and cost of getting to a full trial where a “full appreciation” of the evidence could be gained, it was not realistic to set this as the test as it simply was not readily available to the average litigant.

Rather the court said:

“In my view, a trial is not required if the 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.”

The Supreme Court did not list the kind of hallmarks or factors that the Court of Appeal did to determine when a motion for summary judgment would be available. Arguably many of the factors listed by the Court of Appeal may be taken into account by judges even applying the more generous Supreme Court of Canada test.

The Supreme Court is simply letting the Judiciary know they have to seriously consider determining these matters on a summary basis, because full-fledged long-term justice simply is not always available as an alternative; better summary justice than effectively none at all.

THE RESULT

The rule provides that summary judgment motions must be granted whenever there is no genuine issue requiring a trial. When the judge hearing the motion is able to reach a fair and just determination on the merits there will be no genuine issue requiring a trial. This will be the case when the evidence before the judge allows a judge to make the necessary findings of fact, and apply the law to them in a manner that is proportionate, more expeditious and a less expensive means to achieve a just result.

Accordingly, the judge initially looks at the material and determines if they can make a decision on the basis of the evidence before them. If they can do so without evaluating credibility etc. they will.

If not, then they can apply the new powers of weighing the evidence, evaluating credibility and drawing reasonable inferences from the evidence.

A further new tool that the judge on the motion has is to have witnesses attend before the judge to give oral evidence. Of course the judge will have to weigh whether the necessary evidence would be so lengthy that they may as well wait for the regular trial, rather than have it dealt with on a motion.

Even if the summary judgment is not granted, the Supreme Court recommends the motions court judge use the insight gained from hearing the motion to remain the judge when the matter does get reached for a full trial.

Lastly, the Supreme Court indicated that the decisions of the motion court’s judges will be afforded “deference” meaning, that they will not be lightly overturned by the Court of Appeal, absent palpable and overriding error.

It has been a long, slow process, but the civil justice system in Ontario is being given a shot in the arm. This will assist parties in Ontario to get prompt reasonably priced justice, without being taken advantage of by those who have played the system in the past by using the delay in and cost of obtaining Civil Justice to their own advantage.