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Can a Summary Judgment Motion Avoid the Need for a Civil Trial? – Hryniak v. Mauldin and the New Rule 20
Determining which legal actions require a trial and which should properly be dealt with by way of a summary judgment motion has long been the focus of Rule 20 and its predecessors. The latest and perhaps the most dramatic changes have occurred as a result of the amendments to the Rules of Civil Procedure in 2010 and even more recently with the framework set out by the Supreme Court of Canada in Hryniak v. Mauldin.
In 2010, Rule 20 was amended to encourage more use of Summary Judgment motions by granting motion judges the power to:
a) weigh evidence, assess credibility and draw evidentiary inferences;
b) hear oral evidence to further fact-finding; and,
c) manage actions wherein summary judgment has been denied in whole or in part, by issuing orders/directives aimed at streamlining the matter.
As a result of the Ontario Court of Appeal decision in Combined Air Mechanical Services inc. v. Flesch1 and the line of cases that followed, Rule 20 was implemented on the basis of the Fully Appreciation test which asked “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 a trial”.2
In finding for the Plaintiffs, the motion Judge in Hryniak exercised the new powers available under Rule 20 to weigh evidence, evaluate credibility and to draw inferences. The motion Judge determined that a trial was not necessary and rendered summary judgment against Mr. Hryniak.3 The Ontario Court of Appeal, dismissed the Defendant’s appeal on the basis of the full appreciation test from Combined Air. The Supreme Court of Canada unanimously dismissed the Defendant’s appeal but also did away with the Full Appreciation test. The Supreme Court criticized the Court of Appeal for placing “too high a premium on the ‘full appreciation’ of evidence that can be gained at a conventional trial”.4 The Supreme Court left little doubt that the full appreciation test was no longer to be used in adjudicating summary judgment motions, opting instead to provide an entirely new framework for the adjudication of these motions.
The Supreme Court noted that the traditional civil justice system has become increasing inaccessible to the average Canadian and that the civil trial, long held to be the quintessential expression of justice, may no longer be the proper dispute resolution mechanism in many cases. The Court went so far as to suggest that trials are no longer the default procedure as a result of the enhanced fact-finding powers granted under Rule 20.5 The Court indicated the need for a “culture shift in order to create an environment promoting timely and affordable access to the civil justice system”.6 The Court’s commentary clearly advocates in favour of moving away from the traditional system wherein a trial is the ultimate tool in the adjudication of a dispute. Instead, the culture shift favours “proportional procedures tailored to the needs of the particular case”7 and the Court suggests that such a system can both reflect the modern reality of the inaccessible civil trial while still rendering a fair and just judgment for the parties.
The Hryniak Framework
According to Hryniak, a trial is no longer the default procedure as a result of the new Rule 20. By its explicit reference to the change in wording from the old Rule 20 (no genuine issue for trial), and the new Rule 20 (no genuine issue requiring a trial), the Court as signaled that this simple wording change has resulted in a shift away from a traditional trial as the ultimate end-point for litigants. While the court does not state that summary judgment should become the default provision, it would seem clear that the intention in Hryniak is to reduce trials and increase the use of summary judgment motions and related procedures that dispose of litigation in a fair and just manner.
The change in wording to “no genuine issue requiring a trial” coupled with the associated new powers granted to motion judges under Rule 20, and with the elimination of substantial indemnity costs for a failed summary judgment motion, provide for a clear basis upon which to advocate for much wider use of the summary judgment process. To assist in the fulfillment of that goal, the Court in Hryniak set out a “roadmap” for judges to follow when dealing with a summary judgment motion:
a) First the court should determine if there is a genuine issue requiring trial based on the evidence before the court and without using the new fact finding powers. If the court is satisfied under Rule 20.04 (2) (a) then summary judgment must be granted;
b) Secondly, if the court is of the view there is a genuine issue requiring a trial, then the judge should determine if the trial can be avoided by using the new powers under Rule 20.02 (2.1) and (2.2). Though the exercise of these powers is presumptive, this step remains discretionary8; and,
c) Finally, if the court determines there is a genuine issue requiring a trial and if the court cannot decide the issue by means of the enhanced fact finding powers or in the interests of justice declines to do so then the court should try to salvage the resources invested in the summary judgment motion by devising a summary trial procedure under Rule 20.05.9
A judge confronted with a summary judgment motion must first make a traditional summary judgment determination, i.e. whether there is a genuine issue requiring a trial.10 At this stage of the analysis, this determination should be made on the basis of only the evidence before him/her and without resort to the new fact-finding and related powers of inquiry.
If, on the basis of the motion materials, the judge is able to reach a fair and just decision on the merits that there is no genuine issue requiring a trial, the summary judgment motion will be determinative. In these cases, this procedure will allow the judge to make the required findings of fact and apply the law to the facts. Further, when properly executed, this will result in a proportionate, less onerous and less expensive means of achieving a result that is just. Where all of the above factors are present, summary judgment must be granted.
However, in cases where the judge determines that there is a genuine issue requiring a trial, he/she should proceed to assess whether a trial can be avoided if the judge engages one or more of the new fact-finding provisions. Use of these provisions is discretionary, provided that their use is in the interest of justice and will further the aim of the Rule having regard to the factors of timeliness, affordability and proportionality.11
Resort to the enhanced fact-finding powers in Rule 20 is ultimately at the discretion of the motion judge, “unless it is in the ‘interest of justice’ for them to be exercised only at trial.12 As such, where a judge determines that a matter should proceed to trial, they should first consider exercising the enhanced fact-finding powers in order to determine if doing so can provide a just and fair result while avoiding the expense and delay of a trial.13 Where a motion judge wishes to decline to exercise the new fact-finding powers, he or she should articulate why doing so would not be in the interest of justice.14
Judges that decline to engage their fact-finding powers (and thereby require that a matter proceed toward trial) should provide the basis on which the interest of justice mandates the additional time and expense of a trial.
Where the Rules allow a Judge to uncover the requisite facts and adjudicate the matter on a summary judgment motion, proceeding to a full trial would likely violate the proportionality principle and would therefore not be in the interest of justice.15
The standard of fairness here is not whether the process provides the same level of inquiry as a trial, but rather, whether it permits the judge to adjudicate that matter in a confident manner.16 This level of appreciation is not available only at trial and the evidence used on a summary trial need not be equal to that which would be adduced at a trial.17
In conclusion, the summary judgment rules “must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”.18 More specifically, a trial is not necessary if:
a) a summary judgment motion can achieve a fair and just adjudication;
b) the motion provides a process that allows the judge to make the necessary findings of fact and apply the law to those facts; and
c) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
Judicial Management in the Hryniak Framework
The Court in Hryniak noted that judges can mitigate the risk of increased costs and delays inherent in inappropriate uses of summary judgment motions by implementing judicial oversight to manage and focus the procedure.19
In the case of an unsuccessful or partially unsuccessful summary judgment motion, a motion judge should, according to Hryniak engage his/her trial management powers, pursuant to Rule 20 and/or pursuant to the Court’s inherent jurisdiction to derive a process moving forward that will resolve the dispute and avoid unnecessary costs and delay. The Court also suggested that a judge that hears a summary judgment motion should, in the absence of a reason militating against, remain seized of the matter through trial.20
Prior to the 2010 Rule Amendment, the moving party was required to convince a Judge that there was no genuine issue for trial. However, under the new Rule 20 the moving party is required to show that there is no genuine issue requiring a trial. While initially many expected that this modest wording change would have little meaningful impact, the outcome and analysis provided in Hryniak suggests that the circumstances warranting consideration of a motion for summary judgment have been widened considerably. As such, it would seem that the intended result of the new Rule 20, to increase the availability of early and cost effective resolution by way of a Summary Judgement motion has been achieved, at least in principle, with the decision in Hryniak.
1(2011), 108 O.R. (3d) 1, 2011 ONCA 764 [Combined Air].
2 Combined Air at para. 50.
3 2010 ONSC 5490
4 Hryniak at para. 4.
5 Hryniak at para. 43.
6 Hryniak at para. 2.
8 This step is not available to a Master hearing a Summary Judgment motion because the directive refers specifically to a determination made by a Judge.
9 Pammett v. 1230174 Ontario Inc. 2014 ONSC 2922.
10 Hryniak at para. 49-50 & 66.
11 Hryniak at para. 28.
12 Hryniak at para. 52.
13 Huang v. Mai 2014 ONSC 1156 at para. 33.
14 Hryniak at para. 52.
15 Hryniak at para. 50.
16 Hryniak at para. 51.
17 Hryniak at para. 56-57
18 Hryniak at para. 5.
19 Hryniak at para. 6.
20 Hryniak at para. 6.