Written by Irvin Schein and originally published at www.irvinschein.com.

On January 23, 2014, the Supreme Court of Canada released its reasons in Hryniak v. Mauldin.  The case continues the current trend of lowering the bar on the test for summary judgments.

The Court made a number of observations about the fact that most people cannot afford to take matters to trial, the importance of ensuring access to justice for all Canadians, and the fact that such access must be provided in a timely way.  Accordingly, according to the Court, “summary judgment rules must be interpreted broadly favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”

The Court went on to suggest that even in its current interpretation of Rule 20 of the Rules of Civil Procedure, the Ontario Court of Appeal has set the bar too high. 

To summarize, until not very long ago, summary judgments were generally reserved to cases which were absolutely clear cut, and in which there were no credibility issues to be resolved.  Any case that involved questions of credibility had to go to trial so that live witnesses could testify and judges could decide who to believe.

The rule on summary judgments was subsequently amended and its interpretation broadened by the Court of Appeal.  As a result, motion judges were empowered to make findings of credibility and issue summary judgments where they were satisfied that they had a “full appreciation” of the facts and the issues.  In such cases, they could make those decisions without putting the parties to the expense and delay involved in conducting a trial.

The Supreme Court of Canada now seems to be suggesting that motion judges can make these decisions without necessarily having the full appreciation of the facts.  The Court has to govern itself on the basis of proportionality and “the proportionality principle means that the best form for resolving a dispute is not always that with the most pain staking procedure”.  If the process is disproportionate to the nature of the case, there will not be a fair and just result. 

Accordingly, judges are to make findings of fact unless it is in the interest of justice that the matter go to trial.  If the judge feels that he or she can “fairly and justly adjudicate a claim”, it will generally be deemed appropriate for him to do so and not against the interest of justice for this to be done.  If a party insists that oral evidence must be obtained in order for there to be a fair and just adjudication, that party now has the obligation to demonstrate why this is true. 

In other words, the onus has shifted completely.  It is no longer necessary for a party seeking a summary judgment to show that oral evidence is not necessary.  Rather, the responding party must now demonstrate why oral evidence is necessary.

In my view, this is a fundamental shift in approach.  The Supreme Court of Canada seems to be saying that to the extent possible, the days of protracted and expensive litigation are over, to the extent possible.