Canada: Supreme Court Of Canada Weighs In On Test For Summary Judgment

p>On January 23, 2014, the Supreme Court of Canada released its decision in Hryniak v Mauldin¹ regarding the test for summary judgment under Rule 20 of the Rules of Civil Procedure and judges' powers to weigh evidence, evaluate credibility and draw reasonable inferences, newly introduced in 2010.² The decision provides a much-anticipated review of the "full appreciation test" introduced by the Court of Appeal of Ontario in Combined Air Mechanical Services Inc. v Flesch.³  

Background and facts

The plaintiffs in Mauldin and its companion case Bruno Appliance brought motions for summary judgment, heard together, against Hryniak et al. in an action for civil fraud. The motions judge granted the plaintiffs' summary judgment motions in both instances. The Court of Appeal for Ontario upheld the decision to grant summary judgment in Mauldin but reversed the decision in Bruno Appliance, holding that a trial was necessary to parse the issues relating to the allegations of fraud. The Supreme Court dismissed the appeals in both cases.

The test for summary judgment: the proper approach⁴

Under Rule 20, summary judgment may be granted where there is "no genuine issue requiring a trial."⁵ In making this determination, judges may "weigh evidence, evaluate credibility and draw reasonable inferences."⁶ 

Mauldin breaks away from the Court of Appeal's categorical approach in assessing the availability of summary judgment based on "hallmarks" of suitability. It calls for expanded access to the summary judgment regime and a "shift in culture" with increased focus on the principle of proportionality and access to justice.  

The Supreme Court found that the "full appreciation test" as outlined by the Court of Appeal focused too heavily on the advantages of a trial in hearing evidence, and failed to properly account for the principles of proportionality, timeliness and affordability that underscore the need for summary judgment.⁷ In short, the Mauldin analysis accounts for the reality that a full-fledged trial cannot serve the interests of justice if the associated increase in time and costs make a trial comparatively impracticable.

The Supreme Court also provides guidance on what counsel must do in order to lead oral evidence, sets out a practical "roadmap" to a motion for summary judgment, and confirms the appropriate standards of review for the various findings a judge must make in assessing whether to proceed under Rule 20.  

A judge on a Rule 20 motion should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge without using his or her fact-finding powers.⁸ There will be no genuine issue for trial where the motion judge can "reach a fair and just determination on the merits." This will be the case where proceeding by way of summary judgment: (a) allows the judge to make the necessary findings of fact; (b) allows the judge to apply the law to the facts; and (c) is a proportionate, more expeditious and less expensive means to achieve a just result.⁹ 

If there appears to be a genuine issue requiring a trial, the judge should then use the fact-finding powers under Rules 20.04(2.1) and 2.2 to determine if a trial may be avoided.¹⁰ The determination of whether to use these fact-finding powers is entirely discretionary, and may be engaged unless it is in the "interest of justice" for these powers to be exercised only at trial.¹¹ The SCC makes clear that these powers are presumptively available, rather than the exception.¹² However, if a party seeks to lead oral evidence, they must be prepared to demonstrate why such evidence would help the motions judge, by way of a "will say" statement or description of the evidence.¹³ 

Whether something is in the "interest of justice" does not simply turn on an analysis of the kind of evidence that could be adduced at trial. Rather:

The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers — and the purpose of the amendments — would be frustrated.¹⁴ 

The Supreme Court also held that decisions with respect to Rule 20 and whether there is an issue requiring a trial should be accorded significant deference. Save for errors of pure law that are judged on a standard of correctness, a motion judge's decision on whether to grant summary judgment or exercise his or her fact-finding powers will not be overturned unless the judge makes a palpable and overriding error.¹⁵ This provides motion judges with some assurance that their decisions will not be easily overturned on appeal.  

The new interpretation of the summary judgment rules will likely significantly increase a moving party's chance of success in achieving an order for summary judgment and pave the way for the increased use of tailor-made hearing formats, akin to a summary trial.   

Footnotes

¹ Hryniak v Mauldin, 2014 SCC 7 [Mauldin]. Mauldin was also heard with its companion case, Bruno Appliance Furniture Inc. v Hryniak, 2014 SCC 8 [Bruno Appliance].

² RRO 1990, Reg 194 [the Rules]. For a thorough review of the history and development of summary judgment jurisprudence in Ontario, see T. Walsh and L. Posloski, "Establishing a Workable Test for Summary Judgment: Are We There Yet?" in T.L. Archibald and R.S. Echlin, eds., Annual Review of Civil Litigation 2013 (2013), 419.  

³ 2011 ONCA 764 [Combined Air]. In this case, a five-judge panel was convened to hear five appeals from decisions under the amended Rule 20. Of the five cases, only Mauldin and Bruno Appliances sought leave to the SCC.  

⁴ This approach is based on the sentiment that "the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute," Mauldin at para 57.

⁵ Rules, supra at rule 20.04(2)(a)

⁶ Mauldin, supra at para 44.

⁷ Mauldin, supra at para 56.

⁸ Mauldin, supra at para 66.

⁹  Mauldin, supra at para 49.

¹⁰ Mauldin, supra at para 66.  

¹¹ Mauldin, supra at para 52.  

¹² Mauldin, supra at para 67.

¹³ Mauldin, supra at para 64.

¹⁴ Mauldin, supra at para 56.

¹⁵ Mauldin, supra at paras 80-84.

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