The Canadian Bar Association

Increase in summary judgment motions likely



As a result of the Supreme Court of Canada decision in Hryniak v. Mauldin, it seems a judge hearing a summary judgment motion has more leeway to make findings and draw inferences where he or she is comfortable doing so, says Toronto civil litigation lawyer Patricia Virc.

This appears to water down the standard developed in Ontario’s Court of Appeal which called for judges to gain a “full appreciation” of the evidence and issues prior to making dispositive findings.

“The SCC urged judges to gain this comfort in cases where there appears to be a genuine issue for trial by using their powers under Rules 20.04(2.1) and (2.2) to hear viva voce testimony on discrete issues,” says Virc, a lawyer with Steinberg Morton Hope & Israel LLP.  Virc says this allows the fact-finder to go beyond the written record on certain factual issues without requiring a full blown trial on all issues. 


The SCC also urged judges who hear unsuccessful summary judgment motions to use their trial management powers under Rule 20.05 and their inherent jurisdiction to craft a trial procedure that focuses trial on the real issues, something Virc considers to be very helpful.


Virc believes the decision will increase the number of civil lawsuits being decided by summary judgment motions.


“We have given our courts of first instance broad fact-finding and inference-drawing powers not because the summary process yields a more reliable result, but because it improves access to justice,” says Virc. “Given the broad fact-finding powers, I would like to see appellate courts review findings of fact on a correctness standard.”

The SCC has held that an appellate judge shouldn’t intervene merely if he or she would have made a different decision, says VircRespecting factual findings, there must be a palpable and overriding error for an appellate court to intervene.

“If an appellate judge with access to the same written record thinks the findings of the motions court judge are incorrect he or she cannot interfere.  This is too deferential,” says Virc.

In the end, fairness is compromised, says Virc, and she would have preferred the standard of appellate review established by the Ontario Court of Appeal in earlier cases where the question was “is the evidence reasonably capable of giving rise to a genuine issue for trial?

“The determination of some facts, for example the state of person’s knowledge, is  a very subtle exercise, much better canvassed at a trial where the court can hear the witnesses give evidence in their own words,” says Virc. “This decision will result in a justice system that gives litigants a legal result in a process that is regarded as ‘fair enough.’”

 




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