Page 45 - CCCA Magazine Summer 2014

{ legal UPdate } culture shIFt the eVolutIon oF cIVIl JustIce By Geoff R. Hall in February 2014, the supreme Court of Canada decided tions. Other provinces are also following Hryniak v. Mauldin (2014 sCC 7), setting out a new approach it. The Alberta Court of Appeal has cited Hryniak for the propositions that “the to summary judgment—and to civil justice generally. myth of trial should no longer govern civ- il procedure” and that “interlocutory de- cisions that can resolve a dispute in whole his culture shift requires corporations ity of evidence was to be judged, such that or in part should be made when the re- to adjust their thinking about manag- summary judgment was to be denied if cord permits a fair and just adjudication”. ting litigation, giving them a new tool the absence of a “trial narrative” impaired Hryniak is even being followed outside to move it ahead quickly both when pros- the judge’s ability to decide the case. of the summary judgment context, with ecuting and when defending claims. Then a strange thing happened. The judges citing it to justify proportionate To place Hryniak in context, for about Supreme Court of Canada granted leave procedures without all the steps associ- 30 years, Ontario courts have struggled to appeal in Hryniak—a most unusual de- ated with a conventional trial. to fnd an appropriate test for summary velopment in a procedural case. What is the relevance of the culture judgment. In the late 1980s, a robust test The Supreme Court was setting the shift to Canadian corporations? Summary was adopted: the courts were to take a stage for a major statement about ac- judgment now needs to be considered in “good hard look” at the evidence to weed cess to justice and the state of civil justice virtually any commercial case, especially out claims and defences for which a trial throughout Canada, one which has pushed where the story can be effectively told was unnecessary. Then in the 1990s, the the pendulum in favour of a much easier through documents. It is a more effective Ontario Court of Appeal eviscerated the standard to obtain summary judgment. offensive tactic, available where a corporate rule, holding that a judge on a summary The Court’s decision in Hryniak em- plaintiff wants to move quickly to judg- judgment motion had no fact-fnding phasized several times that a “culture shift” ment and where a corporate defendant function and was limited to the threshold is required. The civil trial is no longer the wants to move quickly to dismiss a lawsuit question of determining whether there norm. Instead, the ultimate goal is pro- brought against it. Conversely, it is now a was conficting evidence requiring a trial. portionality—fnding a procedure com- much greater threat when a corporation As a result, summary judgment became mensurate with the stakes—meaning the is responding to one. No longer can sum- essentially impossible to obtain. The pen- best forum for resolving a dispute is not mary judgment be defeated by pointing to dulum had swung to one extreme. always the one with the most painstak- conficting evidence or arguing that a trial In 2010, in response to dissatisfaction ing procedure. Summary judgment rules judge would be better placed to decide the with the case law, Ontario’s summary judg- must be interpreted broadly to ensure the matter. Corporations should look at every ment rule was amended to lower the thresh- affordable, timely and just adjudication of piece of litigation and decide whether this old and allow fact fnding. Clearly the pen- claims. Although grounded in the amend- new approach to summary judgment pro- dulum had swung back, but how far? ed Ontario rule, the Supreme Court’s mes- vides a new offensive tool or creates new In 2011, the Ontario Court of Appeal sage was directed to the entire country. defensive vulnerability. ❚ convened a fve-judge panel in Hryniak No longer is there a “right” to a trial. and several companion cases to interpret No longer is summary judgment an al- the amended rule. The result was a new ternative procedure available only under Geoff R. Hall, partner in Mc- test: summary judgment was available limited circumstances: it is a viable mode Carthy Tétrault’s Litigation Group in Toronto, has a practice if the record allowed the motions judge of civil adjudication in its own right. focused on corporate/commercial to have a “full appreciation” of the evi- The message from the Supreme Court litigation. He also has experience dence. This was a departure from earlier of Canada is clear, and, so far, it appears in bankruptcy/restructuring, con- jurisprudence, but the pendulum had not the lower courts have embraced it. In On- stitutional law and administrative swung particularly far. The civil trial re- tario, there appears to be a marked uptick law litigation. mained the norm against which the qual- in successful summary judgment mo- Canadian Corporate Counsel assoCiation | CCCa-aCCje.org 45