Hryniak v. Mauldin: Which way has the #SCC swung the summary judgment pendulum?

The Ontario civil litigation bar will now be abuzz for a while with the Supreme Court of Canada’s decision in Hryniak v. Mauldin, released yesterday.  There was a clear departure from the Court of Appeal for Ontario’s 2011 decision in the decision in Combined Air Mechanical Services v. Fleschwhose “full appreciation” test has been seen in some quarters as an attempt to preserve the sanctity of the civil trial and a setback to the efficacy of the summary procedure.  The judgment of Justice Karakatsanis is steeped in the language of access to justice as the driving force for opening up summary judgment as a means for parties to have their civil disputes adjudicated without the delay and expense of trials.  There will be a lot said about the “#A2J” policy behind the decision, and rightly so.

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Inside the life of a reserved summary judgment

Some welcome editorial comments this week from Justice D. M. Brown, of the Superior Court of Ontario, in

Western Larch Limited v. Di Poce Management Limited, 2012 ONSC 7014.

Starting at para. 269 of the decision, the judge candidly describes the disproportionate time required to make rulings on complex summary judgment motions. In a nutshell, he takes aim at one area of judicial allocation, judgment writing time. He says the internal scheduling protocols should be updated to reflect the time needed to deal with summary judgments, which may take up little hearing time but deal with issues as complex as many commercial trials.

In the concluding paragraph, Justice Brown writes, “

If we are to restore the health of Ontario’s ailing civil litigation system, as judges we must not only call on those who appear before us to change their litigation culture, we also must look at our own internal scheduling culture and change it to meet the realities of our times.”

In a paper delivered at a September 12, 2012, meeting at the Ontario Bar Association, Justice Brown had disagreed with comments this writer made to the Canadian Lawyer in a August, 2012, article about the need to allocate judicial resources to meet higher demand for summary judgment motions. In fairness, Justice Brown did not, as I did, propose a separate motion court for summary judgments, separate from procedural motions. But his words are timely and represent an awakening to the need for court modernization.

Judge Brown deserves our praise for speaking candidly about the role of judicial resource administration in problems we face in the justice system. We in the practicing Bar can only encourage more transparency from the judiciary. Judges blaming lawyers will never replace cleaning out the stables. This author, in any event, will offer thanks to him for encouraging the debate. This time, you met me half way.

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