Faster and Cheaper Litigation

The Supreme Court recently released a judgment on summary proceedings aimed to improve access to justice. But many practitioners remain skeptical that it has had that effect
Faster and Cheaper Litigation

In its January 2014 decision in Hryniak v. Mauldin, the Supreme Court of Canada provided what it hoped would be a road map for faster, less costly, more streamlined adjudication of civil actions through greater use of summary proceedings.

While some commentators have lauded the ruling as potentially a major contribution to improved access to justice, other practitioners have been skeptical.

Christopher Bredt, a litigation partner at Borden Ladner Gervais LLP, hails the SCC decision as a positive development. “It is resulting in litigation lawyers in Ontario now opting for summary judgment motions in more cases than they previously would have,” he says.

Linda Plumpton, a litigation partner at Torys LLP, says, “It’s early days still in the judicial system to gauge what the full impact of Hryniak is likely to be. [But] I think inevitably there will be an increase in summary judgment motions brought.”

The jury is still out on the new civil litigation process, says Jonathan Lisus of Lax O’Sullivan Scott Lisus LLP. “We’re going to have to let the summary judgment process, as it has been redefined by Hryniak and interpreted by courts, play out before we can conclude that this has enhanced access to justice.”

The SCC reversed the Ontario Court of Appeal’s ruling in Combined Air Mechanical Services Inc. v. Flesch, a 2012 decision seen as an attempt to preserve the sanctity of the civil trial and a setback to the wider use of summary procedure in Ontario.

Under a summary judgment process, the court can resolve a legal dispute without the necessity of a conventional trial, because there is no conflicting evidence that needs to be reconciled. The parties agree on the facts, and the judge need only apply the relevant law.

Ontario in 2010 had amended its Rules of Civil Procedure with Rule 20, which allows judges to resolve conflicts in the evidence through special fact-finding tools—thus providing for more summary proceedings.

In practice, judges interpreted the new rule narrowly. Typically, the motion judge would decide that the evidence on the motion raised factual issues that necessitated a conventional trial.

The appellate ruling in Combined Air reinforced this tendency. “Its ‘full appreciation’ test made it more difficult to get summary judgment than it was prior to the changes” in Rule 20, says Bredt.

The SCC in Hryniak reversed that position, thereby broadening the scope for summary adjudication. The high court held that the appeal court’s “full appreciation” test was too stringent. Justice Andromache Karakatsanis, writing for a unanimous SCC, substituted a test of “fair and just adjudication.”

“In my view,” she wrote, “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.”

Justice Karakatsanis acknowledged the tradeoffs between a summary adjudication and a full-blown trial, but said that striving for perfection in all cases is too costly. The net benefit to society is greater with increased access to the justice system for a larger number of participants.

According to the SCC, the process that judges should follow on a summary judgment motion is as follows:

1. The judge will decide if there is a genuine issue requiring trial based on the documentary evidence (without use of the new fact-finding tools). If there is not, summary judgment should be granted.

2. If there is a genuine issue for trial, the judge will then decide if the need for a full trial can be avoided using the new fact-finding tools. If so, then those powers should be exercised and summary judgment granted if the plaintiff’s claim is proven on the evidence obtained through the use of those tools.

3. Where there remains a genuine issue for full trial, the same judge should hear the dispute at trial (unless there are compelling reasons why they should not).

Plumpton describes what the SCC had in mind as a “bucket of techniques” that allow for cases to proceed without the need for all of the trappings of trial.

“It can be a summary judgment motion—where you file all your evidence in written form, having conducted cross-examinations in advance. Or it may be a summary trial—where some of the evidence is submitted in writing and there are cross-examinations at the hearing in a fixed time period. They’re all mechanisms on a continuum that allow disputes to be resolved without every single one of the traditional trial procedures in place.”

British Columbia in 1986 led the way in Canada in passing a summary trial rule. The province has different procedures for “summary judgment” and “summary trial.” (Ontario, on the other hand, does not have a separate summary trial rule: its summary judgment rule covers both summary judgment and summary trial.)

“BC’s summary judgment rule is generally interpreted as, is there any genuine controversy?” says Geoffrey Cowper, a litigation partner at Fasken Martineau DuMoulin LLP in Vancouver. “Do you have to make contested findings of fact? If so, summary judgment is inappropriate.”

The judge then has to decide that a summary trial approach is suitable — that the facts can be fairly and reliably concluded so as to enable the judge to decide the case.

In BC, if a case proceeds on summary trial rule, says Cowper, the evidence is generally by affidavit, there are no witnesses who testify in person. “The judge can order discovery or cross-examination that doesn’t bring in the entire trial process, instead tailoring it to the facts in dispute.”

Then opposing arguments are heard in a short time frame – usually a day or less – on what the facts supported by the affidavits establish. Then the parties argue that the claim should either be allowed or dismissed on the basis of the law applied to those facts.

Over the past 28 years, an increasing proportion of the cases resolved by a civil trial judge in BC have been decided after a summary trial rather than a conventional one. An estimated 40 per cent of non-family civil cases in BC are decided under the summary trial rule.

BC’s summary proceedings represent the future for the rest of the country, says Cowper. “It has huge practical advantages for the parties. Sophisticated clients immediately see the advantages of these procedures. But it requires a culture shift [by the Bar and judges] that is going to take time. But that shift is under way. The other provinces and the Federal Court are at different stages of development of this.”

But even enthusiasts of Hryniak concede that a heavy investment of legal firepower upfront in the summary process can backfire. If plaintiff’s counsel spends a significant amount of time (and client’s money) on a summary judgment motion that fails, that’s time (and money) that have been wasted.

“If people bring summary judgment motions and those are rejected and you have to go through the normal trial process, then obviously it’s going to increase the courts’ work,” concedes Bredt.

But he weighs this against the summary judgment motions that will succeed. “Then you avoid the motions that flow from discovery, the pre-trials and the lengthy trial processes.”

A complex summary judgment motion can be a costly gambit. If it fails, says Plumpton, plaintiffs may find themselves back at square one.

“The prep that you do for the arguments and the time that you spend preparing affidavits — not all that work is transferable to a trial if a judge decides that the case can’t be resolved on the basis of paper alone. If the trial doesn’t take place until a year later, much of that work will have to be done again.”

Lisus says the benefit of Hryniak may not be that it lowers the bar for summary judgments, but that it encourages a more “stripped-down” trial process. “I still believe that a trial process is the gold standard for dispute resolution,” he says. “The problem is it takes us too long to get there.”

Hryniak’s real impact may be in getting trials on faster and managed more aggressively, says Lisus. He doubts that summary judgment – “and the inevitable appeal” – is a more cost-efficient approach than a plenary trial that is rigorously case-managed.

For example, Hryniak encourages judges to make credibility findings using their expanded powers. However, they need the time to write those findings carefully — in a way that allows the parties to understand the reasons and allows meaningful appellate review. Says Lisus: “By the time the summary judgment process runs its course, including appeals, in many cases you could have had a trial.”

Bredt acknowledges that, initially, there may be a higher rate of appeals as the courts grant more summary judgments. But he notes that the SCC has instructed appellate courts to apply a deferential standard of review to summary judgments. “These appeals will be difficult to succeed on.”