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. Flesch, whose “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.
A new test for summary judgment?
My first reading of the decision in Hryniak focused more on the mechanics of the summary judgment test, which appear at paragraphs 49 and 66:
49. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
66.  On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).  If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
It must be observed that Rules 20.04(2.1) and (2.2) do not say the new powers are intended to allow judges to make findings of fact. Rather, as stated in subrule 2.1, the purpose of the new powers is to assist the judge “In determining … whether there is a genuine issue requiring trial.” In this respect, the Supreme Court has departed from the plain language of the rule regarding the purpose of the new adjudicative powers. One cannot escape the fact that the court has rewritten the rule to include the power to make findings of fact.
Cuthbert v. TD Canada Trust – An earlier and more contextual reading of the rule
To understand better the steps described in paragraphs 49 and 66, in terms of the summary judgment jurisprudence, it may be helpful to see it as more than an incremental change from Justice Karakatsanis’ earlier expression of the test in her 2010 decision as a motion court judge in Cuthbert v. TD Canada Trust, at para. 11:
Both the analytical review and the availability of oral evidence have considerably broadened the motions judge’s tools in a summary judgment motion. Nonetheless, although a motions judge may weigh the evidence, evaluate the credibility and draw reasonable inferences from the evidence, it is not the role of the motions judge to make findings of fact for the purpose of deciding the action on the basis of the evidence presented on a motion for summary judgment. This change in the Rule does substitute a summary trial for a summary judgment motion. Although a summary judgment motion may, if the motions judge so directs, resemble a summary trial, the test and the decision are different (See Dawson v Rexcraft Storage and Warehouse Inc. 1998 CanLII 4831 (ON CA), (1998), 164 D.L.R. (4th) 257 (Ont. C.A.)) The motions judge must take “a hard look” at the evidence to determine whether it raises a genuine issue requiring a trial. (See Rozin v Ilitchev 2003 CanLII 21313 (ON CA), (2003), 66 O. R. (3d) 410 at para 8 (C.A.)) New Rule 20.04 provides the judge with more tools to do so.
Did you notice the difference? In Cuthbert, the judicial function under the new Ontario summary judgment rule was to determine whether the evidence presented by the parties raise a genuine issue requiring trial: i.e., not to use the new powers under subrule 2.1 (weighing evidence, evaluating credibility of an affidavit’s deponent, and drawing reasonable inferences from the evidence) to make actual findings.
By way of simple example, “I find that Mr. Defendant did not have the consent of Mr. Plaintiff to withdraw the funds” would be a substantive adjudicative finding of fact in a civil fraud case. One would typically see this expression of a judicial finding in a judgment after trial. This would contrast with “I find that Mr. Defendant has failed to rebut the evidence of Mr. Plaintiff that the latter did not grant consent to withdraw the funds.” The latter is a procedural ruling similar to the one employed in default proceedings, where a plaintiff’s allegations are deemed true because of a defendant’s failure to defend an action.
The tension between procedural and substantive judgment abounds in North-American decisions about summary judgment. The origin of the procedural model was Rule 56 of the United States Federal Rules of Civil Procedure, on which the Ontario summary judgment rule was partially based. That rule, to this day, defines the test in terms of the ability of a party’s brief of evidence to “establish the absence or presence of a genuine dispute.” The shifting-burden model of summary judgment came into the Ontario jurisprudence in the Court of Appeal’s decision in 1061590 Ontario Ltd. v. Ontario Jockey Club, in which we heard the famous admonition to respondents: “a respondent on a motion for summary judgment must lead trump or risk losing.” Cuthbert continued this procedural model of summary judgment adjudication by refusing to consider the summary procedure as one in which judges need to make definitive findings of fact in order to make a judgment.
In Cuthbert, Justice Karakatsanis read and interpreted the Ontario summary judgment rule in accordance with its clear intent that making findings of fact is not the purpose of the new powers. In other words, she got right the first time.
The trouble with tinkering
In Hryniak, she allowed the pendulum to swing back half-way to Cuthbert. The problem with this approach may turn out to be that judges may be reluctant to grant summary judgment if, in following the Supreme Court, they still are called on to make findings of fact in contested cases. It is one thing to grant judgment to Mr. Plaintiff because Mr. Defendant did not rebut a sworn statement by Mr. Plaintiff. It is another matter altogether to grant judgment by having to find Mr. Defendant to have been a thief. Talk to judges and you will hear that it is much easier to apply the law than it is to sit in judgment over parties regarding facts. The possibility of new or different evidence coming out a trial has and remains the psychological hurdle which makes summary judgment difficult for a judge to grant. The Supreme Court’s decision in Hryniak has not removed this mental barrier. From a human factors perspective on the judge’s occupational role, a stricter contextual reading of the rule would likely achieve the access to justice goals more effectively than a reading which grafts a fact-finding role onto a procedural rule.
So if you hear in the next little while that the Supreme Court has opened the door to summary judgment wide open, we’ll see if that turns out to be the case. We haven’t heard the last word on this topic.