Pumping The Brakes On Summary Judgement

A recent decision of the Ontario Court of Appeal may cause counsel and litigants to think twice before proceeding with a summary judgment motion.

In Mason v. Perras Mongenais, 2018 ONCA 948, the Court of Appeal stated that "summary judgment remains the exception, not the rule".

Teachings of Hryniak

Following the Supreme Court of Canada's decision in Hryniak v. Mauldin, [2014] 1 SCR 87, many lawyers have been eager to recommend summary judgment motions. The Court noted that trials have become increasingly expensive and protracted, and most Canadians cannot afford to go to trial.

The Court stated that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.

The Court held that the culture 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.

It was emphasized by the Court that the summary judgment rules must be interpreted broadly, favouring proportionality.

Although the Court recognized that the inappropriate use of summary judgment motions creates its own costs and delays, it stated that such risks can be mitigated by motion judges making use of their powers to manage and focus the process and, where possible, remaining seized of the proceedings.

Court of Appeal's Interpretation of Hryniak

In Perras, the motion judge interpreted the culture shift mandated by Hryniak to mean that trials are the option of last resort.

In particular, the motion judge indicated that the culture shift requires an understanding that judges will be deciding cases summarily as much as possible to avoid the expense and delays of the trial process that put civil justice beyond the reach of most Canadians.

The Court of Appeal disagreed, stating that "the culture shift referenced in Hryniak is not as dramatic or as radical as the motion judge would have it".

The Court of Appeal stated that the culture shift means moving away from the very restrictive use of summary judgment that had developed to a more expansive application of the summary judgment procedure.

However, the Court of Appeal indicated that there is nothing in Hryniak to suggest that trials are now to be viewed as the resolution option of last resort. The overriding principal is that summary judgment is only appropriate where it leads to "a fair process and just adjudication".

Commentary

It may be argued...