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The decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, is an important one for civil litigators throughout the country. The case was about changes to the Ontario Rules of Civil Procedure on the use of summary judgment, however, the Court took the opportunity to discuss the values that underlie the civil justice system in Canada.

In her thoughtful reasons on behalf of the Court, Justice Karakatsanis emphasized the need for participants in the system to ensure that timely, efficient and proportionate procedures are used and tailored to the individual case. Lawyers have a special obligation to act in the best interests of their clients: “counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice. Lawyers should consider their client’s limited means and the nature of their case and fashion proportionate means to achieve a fair and just result.” Judges must also take a more active role to “manage the legal process in line with the principle of proportionality.”

This might require a “culture shift” but is necessary to ensure that Canadians can access the civil justice system to affordably resolve their disputes. The stakes are high: “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.”

To further these goals, the Court held that the summary judgment procedure can serve as an alternative model of adjudication to resolve cases more efficiently. The difficult question arises as to when the procedure is most appropriate: that is, when can it best be used in a way that promotes efficiency rather than creating additional cost and delay. As the Court recognized, unnecessary pre-trial procedures can be used tactically as a way of increasing cost for the opposing party. And a failed or even partially successful summary judgment motion can add, “sometimes astronomically”, to additional cost and delay.

With those insights in mind, the Ontario Court of Appeal had set out general guidelines on the types of cases that were suitable for summary judgment: cases that were document driven, with few witnesses and limited contentious factual issues would be suitable. Cases with a voluminous record, calling for multiple findings of fact, would generally not be. While the Court referred to these guidelines as helpful, they “should not be taken as delineating firm categories of cases where summary judgment is and is not appropriate.” The Court of Appeal had erred by placing “too high a premium on the ‘full appreciation’ of evidence that can be gained at a conventional trial, given that such a trial is not a realistic alternative for most litigants.”

Consequently, the summary judgment process can be used to dispose of a claim where the process allows the judge to: (1) make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a more proportionate, more expeditious and less expensive means to achieve a just result. The judge must have “confidence in her conclusions” otherwise the procedure cannot be considered a proportionate manner to resolve the dispute. “Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised…It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”

There will inevitably be disagreements on whether a particular case is suitable for summary judgment. A motion for directions can serve as a useful tool for a responding party to seek a stay of a premature or inappropriate motion. “A motion for summary judgment will not always be the most proportionate way to dispose of an action. For example, an early trial date may be available for a short trial, or the parties may be prepared to proceed with a summary trial. Counsel should always be mindful of the most proportionate procedure for their client and the case.”

All of that said, it is clear that the Supreme Court of Canada took a far more expansive approach to the use of summary judgment than did the Court of Appeal. The goals of the Court in doing so are laudable: to promote the timely and efficient resolution of civil claims. I wonder though whether summary judgment will accomplish these goals in a way that improves the system overall. To my mind, it would be preferable to provide parties with a trial date at the beginning of the process, and to have judicial management in fashioning creative and efficient procedures for the conduct of trials. There are moves in Ontario in that direction, particularly on the Commercial List.

The Court’s emphasis on judicial management is a good one. The question is how those limited judicial resources should best be used to promote the goals of efficiency and proportionality. The reality of our civil justice system is that the vast majority of cases, over 95%, will settle before trial. Eliminating as many pre-trial procedures as possible seems preferable to me than encouraging summary judgment motions. A danger with the Court’s decision is that a flood of such motions will cause bottlenecks in the system and divert resources that could better be used elsewhere.

I was privileged to have represented the Ontario Trial Lawyers Association before the Court of Appeal and the Supreme Court of Canada. We supported the approach of the Court of Appeal, and advanced a position different than that to which the Supreme Court ultimately found favour. It was nevertheless an exhilarating experience.

The Court’s message to the profession, on the need to manage claims in a responsible manner and in the best interest of clients, is an extremely important one. So are the sentiments of the Court on the critical importance of our civil justice system. The system exists for the benefit of the public, and it is to be profoundly hoped the Court’s decision will serve that purpose.