The Further Development of Ontario’s Summary Judgment Rule

Several weeks ago, I posted an article about the decision of the Supreme Court of Canada in Hryniak v. Mauldin, et al., and indicated that in my view this case represented a momentous shift in Ontario’s law on summary judgment.

Further cases released since that time have confirmed my view. I believe that we are approaching a point at which summary judgment motions will become the norm and trials the exception.

The most recent pronouncement in this regard, released several days ago, is the decision of Mr. Justice Corbett in Sweda Farms v. Egg Farmers of Ontario. In that case, a factually complex claim in which the plaintiff alleged that it had been the victim of a conspiracy, that it had suffered losses as a result of the misuse of confidential information, that it had been the victim of violations of the Federal Competition Act, and that it was entitled to damages for both breach of contract and unjust enrichment would never, under the old regime, have been considered a candidate for a summary judgment ruling in favour of either party and on any basis.

However, that is no longer the case.

Leaving the facts aside, the important part of the decision for our purposes has to do with the manner in which Justice Corbett analysed the results of the Hryniak case. In his view, that case:

“… provides a basis for a sort of reverse engineering of this motion, one that may be of great use in summary judgment motions in general. The Supreme Court of Canada is clear that the motions court should ask itself why it should not grant summary judgment”
[emphasis added]

The Court goes on to say that where the motion fails, the Court’s answer to that question “will become an agenda for the case up to its final disposition, in most cases, by the judge who presided on the motion for summary judgment.”

In the past, motion court judges have looked at voluminous motion records, raised their eyebrows and wondered how it could ever be possible to conclude, on the basis of such a significant amount of evidence, that the outcome of a case was beyond doubt. It is clear that this is no longer a relevant consideration. As the Court in this case said, “summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on ‘proportionality’ as a controlling principle for summary judgment motions. This principle does not mean that large complicated cases must go to trial while small single issue cases should not.” At the end of the day, a judgment will be rendered if it can be done fairly and justly without a trial, and a formal trial is no longer to be “the yardstick by which the requirements of fairness and justice are measured.”

To reiterate a sentiment that I expressed previously, the consequences of this new regime for litigants cannot be understated. While summary judgment motions were once the exception, it appears to me that they will now become commonplace. At the same time, of course, this will mean that the evidence that will be required either to prove a claim, or to prove that a claim has no merit, will now have to be generated at a very early stage in the proceeding rather than later in the process and usually after the completion of examinations for discovery and the exchange of undertakings.

Accordingly, and at its most basic, it now appears that the expense to which litigants can expect to be put near the outset of a matter is going to increase very substantially. At one time, intensive trial preparation commenced within the weeks preceding a scheduled trial. At that point, the meters began running almost continuously and the costs to a litigant of getting ready for trial began to mount. However, up to that point, the extent to which litigants were put to expense depended not only on the complexity of a matter but also on the willingness of counsel to expend the time necessary to prepare every minute aspect of a case any sooner than he or she had to do so.

This may no longer be the case. Even though summary judgment motions generally take place early on in a proceeding, and often before examinations for discovery, it is clear that the motions court will require a full evidentiary record in order to deal with a matter. In the Sweda Farms case, the Court found that the plaintiff had failed to provide it with sufficient hard evidence to justify its position. It asserted that it would be calling nearly 100 witnesses at trial but as at the date of the motion, it was found not to be able to put forward sufficient evidence to justify its position.

Accordingly, Sweda‘s claim was dismissed summarily. This is not withstanding the fact that as Courts have noted in the past, conspiracy claims by their very nature involve investigation and the generating of evidence usually not known to a plaintiff until after the completion of the discovery process.

Looking at the situation from a different perspective, I have for many years lamented the fact that pressure on litigants and their counsel to settle cases, relentless as it has been, has made it exceedingly difficult for parties and their lawyers wishing to go to trial to actually do so. This may have significant advantages for a number of litigants, who should be taking a serious look at settlement early on. However, a reduction in the number of matters going to trial does have some negative repercussions.

Firstly, while much of the law governing citizens of Ontario are contained in statutes, as much or more is reflected in jurisprudence. The fewer the number of matters that go to trial, the less guidance that becomes available to us all as to what our rights and obligations are, as society evolves.

Secondly, I am becoming increasingly aware of young and perhaps not so young lawyers in this province who wish to become proficient advocates, having fewer and fewer opportunities to actually go to trial and learn how to advocate. Fewer trials means fewer opportunities for professional growth. As a result, when matters ultimately do go to trial, to the extent that this ever happens, litigants are not as well represented as they might otherwise have been.

In my view, these trends will now be accelerated as a result of the change in the law of summary judgment. One can only hope that the positives will outweigh the negatives over the long haul.

Legal Proceedings and the Middle Class

In an article posted recently in the online version of Canadian Lawyer, Margaret Waddell put forward a proposal which she entitled “A Radical Idea for Giving the Average Person Their Day in Court”.

In her article, she suggested that asking whether or not the average person can afford a trial is the wrong question.  Instead, we should ask ourselves whether we can afford to maintain a judicial system that effectively bars the average person from being able to take his or her civil dispute to trial with the benefit of legal representation.

There is simply no question about the fact that the average person is going to have a lot of difficulty paying for a lawyer to take a matter to trial, assuming that by “average person”, we are talking about someone who earns at the level of Canada’s national income.

Litigation lawyers charge their time out at varying rates, generally dependent upon experience and, to some extent, geography. On balance, in my view, one gets what one pays for. That does not mean that a person will only be able to get proper or even adequate representation by paying top dollar.  I know many young litigation lawyers, including those at my own law firm, who can do an excellent job at a reasonably hourly rate.  My definition of “reasonable”, however, may not be shared by everyone.  Even young lawyers can be costly for average income earners.

For those whose incomes are below average but nowhere near the poverty line, the justice system approaches complete inaccessibility.  Family law courts in particular are inundated with cases where at least one of the two parties are unrepresented.  Where an unrepresented party must go into battle against a lawyer acting on the other side, the result can be devastating.  What may be even worse is that the unrepresented party will usually leave the courtroom without the first clue as to what just happened to him or her, or what he or she could have done prior to the hearing in order to increase the odds of success.

In smaller claims, an attempt has been made to address the point by increasing the Small Claims Court jurisdiction to $25,000.00.  The Small Claims Court is designed for people to be able to represent themselves without counsel.  While I do not have any statistics to offer, I have to believe that this has made a positive difference.

Ms. Waddell’s radical idea, incidentally, is that every lawyer ought to choose a case in which the client cannot afford to proceed and agree to act without charging a fee, or at a substantially reduced rate, or on a contingency.  By doing so, she suggests, the client can be shown that he or she is not a faceless commodity and that the legal profession is still prepared to help the average Canadian to obtain access to justice.

Ms. Waddell’s proposal is a laudable one but, I fear, unlikely to gain traction.  While many law firms would be prepared to consider acting without charge where doing so serves the public interest, or where humanitarian considerations exist, the idea of ignoring economic realities out of general principle is not likely to be viewed favourably by very many lawyers.

In my view, a better answer is to pursue the policy that gave rise to the increase in the Small Claims Court monetary jurisdiction by making it easier for people to represent themselves.  The first step to be taken in that process, as far as I am concerned, is to simplify the route which one must take to get to trial.

The need for simplification is nowhere clearer than in the family law context where, as I have indicated, many cases involve unrepresented parties.  Although I do not practice in the family law area, I have been present in Family Law Court and I have been astonished at the inability or the unwillingness of judges to take into account the fact that they are speaking to unrepresented litigants who are familiar with neither the procedure nor the jargon associated with court proceedings.  These are people who leave the courtroom completely mystified and, even worse, feeling as if they have no chance of ever receiving what they would consider to be their day in court.  I would bet that if the stakes were not so high, many would just give up.

I do not believe that lawyers are going to be increasing the number of pro bono cases they take on any time soon.  As Ms. Waddell points out and as many of us know, we do have a problem with access to justice.  In my view, the answer is to increase the opportunities for people to represent themselves where they choose to do so either because they cannot afford a lawyer or for any other reason.  This means, firstly, that the monetary jurisdiction of the Small Claims Court, with its enormously simplified procedures, should be increased even further.

Secondly, parties involved in disputes in that court should be expected to represent themselves.  Indeed, a party wishing to be represented by counsel should have to demonstrate a need for such representation by satisfying a judge, on motion, that the party is incapable of representing himself or herself.

Thirdly, and specifically with respect to parties involved in matrimonial disputes, the process must be simplified.  In that respect, I am not talking about even more steps designed to encourage or, as some might say, coerce parties into attending endless settlement conferences and discouraging them from ever actually entering into a courtroom to have a dispute resolved once and for all.  I am talking about simplifying the rules, eliminating unnecessary steps, and translating the rules into plain English so that people understand what they can expect in a courtroom, and what will be expected of them.