Summary Judgment – No Longer the Exception

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

Virtually all jurisdictions in Canada have summary judgment rules allowing a plaintiff or defendant to apply to the Court for a summary determination of the claim, usually based on affidavit evidence, cross-examination on the affidavits and legal argument. Historically, if the Court found “a genuine issue for trial”, applications were routinely dismissed, with summary judgment reserved for clearly unmeritorious claims or defences. Often, the filing of disputed affidavit evidence led judges to defer the case to be determined at a full blown trial.

However, a recent decision of the Supreme Court of Canada Hryniak v. Mauldin, 2014 SCC 7 [Mauldin], heralds a shift towards the increased use of summary judgment procedures. In the course of its reasons, the Court noted that the present litigation paradigm is beset with undue delays and procedures and expenses that often serve to deny access to justice to many litigants. In this respect, the absence of a robust summary judgment regime threatens the rule of law. The Supreme Court proclaimed”a culture shift is required…This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trail.”

Commenting on the summary judgment rules at issue, the unanimous Court stated (at paragraph 5): “…summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”

The necessary evidentiary threshold to obtain summary judgment was described as one that “…need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute.” In application, the Supreme Court endorsed the trial judge’s relatively sweeping use of the new summary judgment powers in Mauldin to ultimately dispose of a civil fraud action resulting in significant damages. The case was relatively complex and involved a voluminous record.

Mauldin marks a significant change in the Canadian legal landscape in favour of summary disposition. Summary judgment regimes are no longer to be treated as a means to weed out plainly unmeritorious claims, but “…a significant alternative model of adjudication” whose mechanisms are “presumptively available”.

Summary judgment has already been used widely within class proceedings across several jurisdictions. Such applications have been heard both pre and post certification as well as concurrently with certification. However, with the Supreme Court’s clear message to expand the role of summary judgment, it should be expected to see a greater willingness on the part of defendants to advance summary judgment motions. These could include more attempts to summarily determine novel claims that have been certified. Strategically, defendants with strong cases on the merits may consider choosing not to contest certification in favour of pursuing summary judgment against a certified class.

Plaintiffs also may be more encouraged to seek summary judgment based on the comments from the Supreme Court that summary determination in proper cases advances access to justice and allows adjudication to occur where it would not before. However, it is questionable whether this reasoning meaningfully assists a plaintiff in a certified action. Class actions already represent a procedure that theoretically allows claims to be tried that would likely not otherwise be tried. Further, unless all common issues could be determined summarily little or no efficiency may be gained by summarily determining some issues and trying the remainder. If anything the chance for a speedy determination of individual claims based on the principles advocated in Mauldin could militate against certification.

The Mauldin decision is particularly timely in Saskatchewan, where a new summary judgment regime modeled after Ontario’s regime was ushered in by last July’s amendments to the Rules of Court. Prior to the introduction of the new Rules Saskatchewan’s summary judgment rules were by far the most limited and restricted of any common law jurisdiction in Canada. As a result, Saskatchewan has virtually no tradition of summary judgment proceedings. However, the new regime, coupled with the guidance provided by Mauldin, suggests that summary disposition should now play a much enhanced role in resolving litigation in the province, including within class proceedings. To date, the new summary judgment rules have not been applied within any class proceedings.