Access To Justice & Summary Judgment Post-Pandemic: A "Culture Shift" - At Long Last?

• Published date: 29 June 2020
• Law Firm: Rogers Partners LLP
• Author: Mr Stephen G. Ross and Gemma Healy-Murphy

The COVID-19 pandemic looks set to be the impetus for much change in the world as we knew it, not least with respect to the administration of justice. The courts have recognized both the need to bring the Ontario judiciary into the virtual world and the benefits that could be derived from same when society emerges fully from these unprecedented times, including more timely and cost effective access to justice.

This is not the first "crisis" that has rallied a call for change in the courts' system. In 2014, the Supreme Court of Canada spoke of Ontario's "broken" civil justice system in the seminal case of Hryniak v. Maudlin¹.

Summary judgment was heralded as the way forward in increasing access to justice and promoting proportionality, expediency and affordability in the context of civil litigation.

The Supreme Court of Canada held that a "culture shift" was required to promote these goals, in particular by "moving the emphasis away from the conventional trial". In that way, summary judgment was primed as the catalyst for change in the administration of justice in Ontario and beyond.

While there were optimistic beginnings, the "culture shift" that was envisioned by the Supreme Court of Canada in theory has fallen far short in reality, particularly in certain practise areas, including personal injury and insurance law. The caselaw that has followed in the six (6) or more years since Hryniak reveals many reasons for same, including a scarcity of judicial resources and the impact of interpretative/judicial erosion.

Then, enter the COVID-19 pandemic, which served to ground an already "broken" system to a complete halt, albeit briefly, and from which we are now starting to emerge.

Looking Back to Look Forward

Over the past few months, we have seen the judiciary quickly and creatively respond to the challenges imposed by the COVID-19 pandemic. In this way, we have seen the makings of the "culture shift" called for by the Supreme Court in Hryniak, and the courts appear invigorated by the efficiencies that are already emerging.

Let's look back briefly to see past obstacles, and how the Ontario courts can move forward and renew its efforts to promote the efficiencies of summary judgment that the Supreme Court of Canada extolled in Hryniak, in the post-COVID-19 pandemic era.

Scarcity of Judicial Resources

In Hryniak, the Court noted that "to the extent that current scheduling practices prevent summary judgment motions being used in an efficient and cost effective manner, the courts should be prepared to change their practices".

There is a distinction between the courts being so prepared and having the necessary additional resources required to truly give full legal effect to the vision of the Supreme Court in Hryniak. This vision has, unfortunately, not come to pass, in part because of the scarcity of judicial resources, including the number of judges, and the lack of available government funding to facilitate such change.

Further, the courts were notoriously slow to embrace the digital age.

While the COVID-19 pandemic will unlikely serve to increase judicial resources and funding (in fact the opposite could be true), what it has done is force the courts to quickly adapt to more remote operations and, presumably, to find ways to reallocate the resources that are available in order to...