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Following a recent decision, Michael Polvere describes why the old adage “I’ll get my day in court”, in the traditional sense, has changed.

While much has been written by lawyers, and between lawyers, about the ground breaking case, Hryniak v Mauldin,[1] which was decided by the Supreme Court of Canada in January of this year; litigants and the average person may not understand the profound cultural shift that the decision represents.

The potential litigant does not need to understand nor be familiar with the facts of Hryniak v Mauldin nor how the group of cases wound their way through the court system in Ontario to the Ontario Court of Appeal and finally to the Supreme Court of Canada. What a potential litigant needs to understand is that the old adage whereby they believe they will “get their day in court” has changed. They may get their day in court, but it may not be in the traditional sense – where they are in a witness box giving viva voce evidence under oath to the court. The new “day in court” may simply be as a spectator whereby their evidence is given in affidavit form and their day in court is simply to observe their lawyer make submissions.

The courts and judges in Ontario have been struggling with the tension associated with the traditional belief a litigant has that they deserve a trial and that they will get their day in court to explain it all to a judge or jury; and the stark reality that very few litigants can afford to go to trial because of the exorbitant costs involved.

The Rules of Civil Procedure, which govern how civil litigation is conducted, has provided for an exception to the trial model for dispute resolution within the Superior Court of Justice in Ontario which is a motion for summary judgment. Currently, Rule 20.04, the summary judgment rules states:

General

(2)  The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

Powers

(2.1)  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:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

What has been of some debate within the bench and bar of Ontario is how to interpret this provision. When is it useful or appropriate to dispose of an entire action via a summary judgment motion, which is, essentially, affidavit evidence and cross-examination on those affidavits and legal written and oral submissions by counsel? When is there “no genuine issue requiring a trial”?

The test and the case law interpreting same have evolved over the years. At one point, a party who brought an unsuccessful motion faced the potential risk of increased punishment by being ordered to pay a higher than normal amount of the other side’s legal fees because the other party was successful in defending the summary judgment motion. In years past when a party was unsuccessful with their summary judgment motion the case then usually shifted back to the “normal track” and on the way to trial.

However, the Supreme Court of Canada has now spoken on the matter in Hryniak v Mauldin. And what litigants need to understand is that this cultural shift that the Supreme Court of Canada is now espousing may mean that they may not get there full day in court through a trial.

As Karakatsanis J. wrote:

[1]   Ensuring access to justice is the greatest challenge to the rule of law in Canada today.  Trials have become increasingly expensive and protracted.  Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.  Without an effective and accessible means of enforcing rights, the rule of law is threatened.  Without public adjudication of civil cases, the development of the common law is stunted.

[2]   Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.  This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.  The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just….

[34]  The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial…

However, the flipside to a litigant not having their day in court and the cultural shift as Karakatsanis J. alluded to is that a summary judgment motion may allow a defendant to strike out a frivolous claim much earlier and much more efficiently than through a trial model. This system, it is important to point out, still has at its core and maintains as its goal – access to justice. Further, again, in appropriate circumstances, if it is the plaintiff litigant which is attempting to have its matter summarily resolved on a summary judgment motion, there is greater opportunity to do that now than ever before. This also leads to a proportionate and timely resolution of disputes.

Bringing a summary judgment motion and attempting to resolve an entire action using this tool should not be taken lightly. However, litigants are likely to embrace such a concept (when appropriate on the advice of counsel) because one of the most frustrating aspects of civil litigation is the time it takes to finally get to it full blown trial. This may allow the right cases to be determined much more efficiently, proportionately and effectively.

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