Published on January 23, 2014
Posted in: Blog, David Sterns, Jennifer Pocock
On Thursday, the Supreme Court of Canada released two landmark decisions that make it easier to obtain summary judgments in Ontario, and will impact thousands of summary judgment motions across the country.
In its decision, which has implications for businesses of all sizes as well as individuals when they become involved in a dispute, the court gave judges much more discretion in issuing summary judgments, saying “undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes.” (Note: Emphasis is in the decision.)
The court went on to note that “… ordinary Canadians cannot afford to access the adjudication of civil disputes.”
The ruling is important because the often-prohibitively high cost of taking a case to court stops many Canadians in their tracks – both businesses and individuals – from launching actions. The decision should make it simpler, and less expensive, to ask courts to resolve disputes.
Sotos’ lawyersand assisted the Ontario Bar Assn. in arguing the winning position before the court. Mr. Sterns also chairs an OBA committee looking at ways to provide greater access to justice in the province.
The court draws a new roadmap for summary judgment motions. Key is that trials are no longer to be considered the default procedure. Moving forward, the rules regarding summary judgment are to be interpreted broadly, making it more widely available than before.
Judges must now use the expanded powers that include weighing evidence, evaluating credibility and drawing inferences to avoid a trial as long as it is not against the interest of justice. The question judges must ask themselves first is whether using the new expanded powers on a summary judgment motion can resolve the dispute.
Clearly, the court is shaking up the status quo – in fact, the decision says that is what the Justices are doing. Promoting access to justice calls for a cultural shift, not a just few changes in order to adequately address the goals of timeliness, affordability and proportionality.
Long Time Coming
Summary judgment is a special procedure that does not involve a traditional trial. Instead, the court can make a judgment based on filed material and limited testimony from witnesses. The purpose of summary judgment is to make litigation faster and cheaper.
The two cases decided by the high court stemmed from a landmark decision by the Ontario Court of Appeal.
In an extraordinary five-judge panel, the Court of Appeal ruled on five separate appeals to cases decided by summary judgments. This decision quickly became the rulebook for lawyers and the benchmark in determining when an action did not need the “forensic machinery of a trial” to be decided.
The Ontario decision, usually referred to as Combined Air, provided some much needed direction to the summary judgment rules that came into force in 2010. Changes to the rules were prompted by recommendations made back in 2007 by the Hon. Coulter A. Osborne, Q.C., who said at the time that having “access to justice” was an overarching issue.
However, Combined Air quickly faced criticism. Some argued that Parliament’s intent behind the amendments had been thwarted by a very pro-trial Court of Appeal. Now the Supreme Court of Canada has weighed in to decide the fate of summary judgment in Ontario and across the country.
The full decision in Hryniak v. Mauldin et al is available on-line at the Supreme Court website.
If you have questions or want more information on this landmark ruling, call firstname.lastname@example.org 416.977.0007 or e-mail him at