On January 23, 2014, the Supreme Court of Canada released companion decisions clarifying the scope and interpretation of Ontario’s new summary judgment rules: Hryniak v. Mauldin, 2014 SCC 7, and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8. The decisions are likely to expand the use and success of summary judgment motions in Ontario.
The related cases were appeals from decisions of the Ontario Court of Appeal, one of which had overturned a lower court decision granting summary judgment with respect to allegations of civil fraud. In both cases, Justice Karakatsanis (writing for a unanimous Supreme Court) dismissed the appeals. However, the Court was critical of the narrow view that the Court of Appeal took of the circumstances under which summary judgment is appropriate pursuant to Rule 20 of the Rules of Civil Procedure, which was amended in 2010 in an effort to enhance access to justice.
Summary judgment may not be granted under Rule 20 where there is a genuine issue requiring a trial. The Court held that in order to determine whether there is a genuine issue requiring a trial, the motion judge should engage in a two step process.
First, the motion judge must ask whether the matter can be resolved in a fair and just manner on a summary judgment motion, i.e. whether the process:
- allows the judge to make the necessary findings of fact;
- allows the judge to apply the law to the facts; and
- is a proportionate, more expeditious and less expensive means to achieve a just result.
Second, if it appears to the motion judge that there is a genuine issue requiring a trial, he or she should then ask if the need for a trial can be avoided by using the new evidentiary powers provided under Rules 20.04(2.1) and (2.2), which provide as follows:
(2.1) [Powers] In determining under clause(2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
(2.2) [Oral Evidence (Mini-Trial)] A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
These new powers are discretionary and may only be exercised if it is in the “interest of justice” to do so. The Court of Appeal suggested the motion judge should only exercise his or her discretion under Rule 20.04 (2.1) in very limited circumstances (i.e., where the motion judge can achieve the “full appreciation” of the evidence and issues on the motion for summary judgment, in contrast with the benefits of the trial process, and in cases with few witnesses and limited contentious factual issues). The Court of Appeal also advised motion judges to make use of the power to hear oral evidence under Rule 20.04(2.2) in very limited circumstances (i.e., to hear only from a limited number of witnesses on discrete issues which would be determinative of the motion).
Despite dismissing both appeals, Karakatsanis J. emphasized that amendments to Rule 20 were made to improve access to justice by encouraging the use of summary judgment to avoid lengthy and expensive litigation, given that a trial is “not a realistic alternative for most litigants”. She was therefore critical of the Court of Appeal’s approach, finding that they set the bar for summary judgment too high. For example, Rule 20 does not require that the evidence be equivalent to that at trial; only that it be sufficient to fairly resolve the dispute. As stated by Justice Karakatsanis, the new evidentiary powers at Rules 20.04(2.1) and (2.2) “are presumptively available, rather than exceptional, in line with the goal of proportionate, cost-effective and timely dispute resolution”.
Karakatsanis J. also commented on two tools available to judges to maximize the efficiency of a summary judgment motion: (1) the use of motions for directions to ensure early judicial involvement in summary judgment motions, and (2) the use of trial management powers under Rule 20.05 in the event of a failed or partially successful motion for summary judgment. Significantly, Justice Karakatsanis 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."