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Civil Litigation, Intellectual Property

Hryniak still raising questions three years on

A host of unanswered questions about summary judgment motions remain almost three years after the Supreme Court of Canada’s landmark judgment on the issue, says Toronto intellectual property and civil litigation lawyer Kevin Fisher.

In Hryniak v. Mauldin, [2014] 1 SCR 87, the nation’s top court approved a number of new fact-finding powers for motion judges in the 2010 changes to Ontario’s Rules of Civil Procedure.

The measures, which include the ability to hold a mini-trial, weigh evidence, evaluate credibility, and draw inferences as well as the ability to decide all cases, even where there appears to be a genuine issue for trial.

Before the amendments, the dismissal of summary judgment motions were predominately viewed as interlocutory decisions, meaning the unsuccessful party could seek leave to appeal to the Divisional Court or take their chances on the matter proceeding to a full trial, explains Fisher, a partner with Gardiner Roberts LLP.  

However, under the new rules, he says the extra powers granted to motion judges effectively render the dismissal of summary judgment motions final decisions, particularly when they were brought by plaintiffs. In a recent intellectual property matter, Fisher successfully defended a plaintiff’s motion for summary judgment on the basis that they had provided insufficient evidence to establish their claims.   

“In summary judgment motions, the courts have held that you must put your best foot forward. You cannot hope that more and better evidence may be available at trial; you have to present your whole case on the motion or risk losing. So logically, if a plaintiff cannot establish sufficient evidence on a motion for summary judgment that it brought, the case is over,” he tells “If you haven’t given the court sufficient evidence to decide in your favour on a motion for summary judgment, you don’t get to come back and introduce more and better evidence at trial.”  

Fisher says that lawyers acting for plaintiffs on motions for summary judgment that are dismissed "should view this as a final decision and consider their appeal rights accordingly or they may be negligent."

Instead of going to the Divisional Court and seeking leave, he says they should be looking to Ontario’s Court of Appeal, as a direct appeal from a final judgment.

"This is something that has been overlooked in the fallout from the Hryniak decision: what the impact is where summary judgment is not granted but the case is not otherwise dismissed,” he says. “There are no cases on that specific issue yet.”

In addition, Fisher says the recent Court of Appeal decision in Singh v. Concept Plastics Limited, 2016 ONCA 815 has sparked debate at the bar over the usefulness of summary judgment in simplified procedure actions where credibility is an issue.

That case involved two employees who initially won a wrongful dismissal action on summary judgment, but the decision was reversed on appeal. The employer successfully argued that restraints, such as the bar on cross-examining affiants, imposed by the simplified procedure rule rendered the process unfair when it comes to summary judgment.

According to Fisher, the case doesn’t necessarily rule out summary judgment as an option for plaintiffs in this situation. However, he says he would have liked to see more guidance for motion judges on how to deal with these types of credibility issues without the possibility of cross-examination, and when to invoke their power to order oral evidence.

“It would be good to get some clarification on those issues,” Fisher says.

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