Focus: Have summary judgments changed the landscape?

It has been three years since the Supreme Court of Canada ruled in Hryniak v. Mauldin, and lawyers in Ontario say that a culture shift is definitely happening in the courts with respect to summary judgment motions. However, they say some aspects are taking longer to catch on than others.

“Cases were getting bogged down, they were costing too much and people were moving their cases out of the public courts,” says Bradley Berg, a partner with Blake Cassels & Graydon LLP in Toronto and president of the Advocates’ Society.

“Either they were settling them where they shouldn’t have been settled or they were moving them to arbitration. I can tell you in my own practice, which I think is pretty representative of commercial litigators, half of my practice is now arbitration work instead of litigation.”

Berg says that before Hryniak, clients were getting frustrated with the length of time it took for matters to make their way through the public courts and the expenses incurred.

Hryniak ruled that summary judgment motions must be granted whenever there is no genuine issue requiring a trial, and that 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.

The Advocates’ Society, which intervened in Hryniak, were pleased with the result. In the time since, Berg’s experience is that summary judgment is now considered in almost every case he has come across and more motions are being brought than ever before.

“Summary judgment is being granted, in whole or in part, in most cases where it’s brought,” says Berg.

Shantona Chaudhury, partner with Pape Barristers PC in Toronto, agrees with Berg that a culture shift has occurred due to the ruling.

“People are thinking more and more about how do I streamline this, how do I reduce this from a full-blown trial to something that’s more efficient and more manageable,” she says.

Part of that shift means that more evidence is now being submitted as affidavit rather than live testimony, she says, and the trial focuses more on cross­examination.

“I think it’s a very positive thing for the entire system,” says Chaudhury.

“That’s how they do it in England, that’s how most commercial arbitration works, and it’s a much more efficient way of proceeding,” she says. “It’s a heavy onus on the judge, because they have to learn a lot more beforehand.”

Some litigators, such as Howard Borlack, partner with McCague Borlack LLP in Toronto, are still seeing a bit of reluctance to move summary judgment motions, in part because of the cost consequences.

“Before, your materials were pretty limited because you were worried about dealing with issues of credibility, so you’d try to frame your materials to not raise any issues of credibility,” says Borlack. “Now you have a little more leeway in that area. The materials are a little more extensive and the cross-examination is a little more extensive, and the mass of material.”

Borlack says lawyers making a summary judgment motion need to make the argument that there’s no significant evidence that they would hear at trial that would change what the judge could do with the record before it. As a result, they want the record to be more complete, which could mean hearing from other potential witnesses as part of the affidavit evidence submitted.

Borlack adds that summary judgment used to be used by plaintiffs more, but since Hryniak, he has noticed a shift.

“It’s given a boost to defendants to get out of stuff when it’s a weak cause of action, weak facts in support of it or weak law,” says Borlack. “It’s encouraged defendants to be more proactive.”

Figures provided by Ontario Court of Appeal Justice David Brown at the County of Carleton Law Association’s civil litigation conference in November 2016 showed that from 2014 to mid-October 2016, 80 per cent of summary judgment appeals brought before the Ontario Court of Appeal were dismissed.

Berg said that the appellate level is part of the Hryniak decision that can’t be overlooked, where the Supreme Court of Canada gave guidance that summary judgment motions should not be judged to a standard of perfection, giving deference to the motions judge unless there is a clear error of law.

“The courts are listening,” says Berg. “They’re letting these motions decisions stand.”

As part of Justice Brown’s presentation on the appellate experience of summary judgment, he noted that, in some regions, summary judgment notions have become “trials-in-a-box,” where counsel are not providing motions judges with the degree of assistance required for a litigation step that could dispose of the case on the merits, but, rather, they have taken the attitude that the judge can find what’s important “somewhere in the box.”

Brown said that motions judges don’t have the time to look in that box for answers, but they require guidance from advocates.

Brown listed the obligations to the motions judge as counsel giving the same degree of assistance on the issues that they would give a trial judge, that the factums must be thorough and start with a concise overview before developing the material facts, with extracts from references to relevant documents, affidavits or transcript evidence. He also said that counsel must set out the relevant principles of law and explain how those principles apply to the specific case, and to give the motions judge assistance on understanding the remedies sought on the motion where applicable.

Berg agrees with Brown’s frustrations, calling it the “Hail Mary of the lazy lawyer,” but he says that it was a problem before Hryniak as well. Berg says that one of the good things about the summary judgment trend is that it forces lawyers to learn their cases earlier.

“You don’t just meander through discovery and some time before trial you learn your case and hire an expert,” says Berg. “It advances that work. Lawyers should do that. The moment you get a case, you should be learning it and thinking about how to get an outcome for your client earlier, and that means putting the work in earlier.”

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