Hryniak v. Mauldin

Two recent decisions of the Supreme Court of Canada represent the continuing search to find quicker and less expensive processes in which disputes brought before courts can be decided and resolved.

The decisions of Bruno Appliance and Furniture, Inc. v. Hryniak and Hryniak v. Mauldin, are both appeals from the Ontario Court of Appeal, on the issue as to when Summary Judgment can be granted. Both cases deal with a related set of facts surrounding an alleged fraudulent investment scheme. The decisions are extraordinary, in my opinion, in that they appear to reverse the onus of granting summary judgment, and that it is now up to the party responding on any such motion to prove that the case should be decided by a judge in a traditional trial, instead of on the party seeking summary judgment to show that it should not. The court ruled that even if a judge hearing a summary judgment motion decides that there is not a genuine issue for trial (the test to award summary judgment) then he or she should still see if summary judgment can be awarded by using other tools available to make a decision.

Summary judgment procedures were first introduced in Ontario in the 1980s, and have, for the most part, been given a short shrift by judges. The procedure was originally brought in as an attempt to shorten the time and lessen the expense of those cases that were obvious on their face, and did not require the full hearing of traditional trial with live witnesses, cross-examinations, and a full documentary record to decide. Under summary judgment, a judge could decide a case based upon documents only, without hearing a full trial.

Unfortunately, judges, who are favourable to the more traditional trial methods, and want to be able to see live witnesses and determine their credibility, as well as know that they have viewed all of the evidence before making a decision, refused to grant summary judgment except in the very clearest of cases. This bias led to removing any teeth from the summary judgment procedure, making it very difficult to obtain summary judgment and it became very rare. Over the years, in response to the anti-summary judgment bias of judges, attempts were made to put more meat into the procedure to make it more difficult for them to refuse to use it, but each time judges’ decisions seem to continue to bring down these attempts, until the latest changes were introduced (in Ontario) in 2010.

The two decisions cited above, which relied upon the new 2010 procedures, appears to have been a direction to judges across the country that if a motion for summary judgment is brought before them, then the default position is to grant summary judgment, which should only be diverted from in the clearest of circumstances. Justice Karakatsanis ( a former judge of the Ontario Court of Appeal) wrote the decisions on behalf of the court, and tips her hand early on in the decisions when she writes:

In my 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.

To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

The theme of deciding a case in a manner that is balanced in costs to the amount of the claim, and that can allow the public a relatively quick disposition seems to be the overriding factor that the court directs judges to consider in deciding these types of cases. This position is a continuation of courts’ reaction to the increasing costs, to both the litigants themselves, and to the public in providing more and more resources for the justice system, which has lead to such measures such as the introduction of widespread mediation, and raising of the monetary limits for small claims’ courts.

It will be interesting to see if lower courts follow the Supreme Court’s direction in allowing more cases to be decided by way of summary judgment, or if the trend towards sabotage of this worthwhile procedure continues. If the judges in lower courts do facilitate the ability to decide cases on summary judgment then it may prove to allow the public much better access to litigate civil disputes in the courts of this country.