Hryniak two years on

Since she began practising with Osler Hoskin & Harcourt LLP in Calgary a decade ago, Kelly Osaka has been a front-line witness to the access-to-justice crunch in Canada’s courts. As Alberta’s population exploded, so, too, did the demands on court time and judicial resources. Litigation files, meanwhile, became bigger than ever, fuelled by electronic document discovery and other practices that built delays into the system. Osaka’s commercial clients, who could presumably afford the cost of a lengthy trial, began balking at the prospect and asking for alternatives.

So it was a welcome surprise in January 2013 when the Supreme Court of Canada issued a unanimous ruling calling for a “culture shift” in favour of more “timely and affordable access to civil justice.”

The court’s solution to the crisis was the humble summary judgment motion — described in Hryniak v. Mauldin by Justice Andromache Karakatsanis as a “legitimate alternative for adjudicating and resolving legal disputes” not merely a “tool used to weed out clearly unmeritorious claims or defences.” Osaka says, “It was kind of revolutionary.” Not only was the country’s top court making a forceful bid for change, “but it was a surprise to see the court pushing something that they’d only talked about theoretically into a more practical application for lawyers and parties.”

Two years have passed since the SCC tried to elevate summary judgment to the default procedure in civil litigation. In that time, Osaka and other lawyers have watched closely to see whether the culture would indeed shift into something more proportional, efficient, and innovative.

The answer is still uncertain. In Ontario, Alberta, and Saskatchewan, there are signs that Hryniak is having an impact, encouraging judges and counsel to make use of tools such as fact finding and oral evidence where appropriate in summary proceedings. Elsewhere, the ruling’s reception has been cool at best. “The language of Hryniak,” says Osaka, “has been picked up in the Ontario courts and in the Alberta courts, where you see not only the masters eloquently describing how summary judgment can help access to justice but also the [Alberta] Court of Appeal and Court of Queen’s Bench all now using this language, which is very favourable to this type of motion. In Alberta especially, the courts and counsel have just embraced it.”

In research for the Canadian Bar Association 15 months after the Hryniak ruling, Osaka noted the decision had been cited 530 times by courts across the country. That’s a large number, she says, considering that two other civil law decisions of the Supreme Court released at the same time were only cited about 30 times each over the same period.

A more detailed study by Ted Tjaden and Matthew Karabus, of Gowling Lafleur Henderson LLP, published in The Advocates’ Quarterly, said that one year after its release, the decision had been cited in 460 Canadian cases, including 299 in Ontario alone. Of the Ontario cases, 217 involved summary judgment motions, in which full or partial summary judgment was granted almost 75 per cent of the time. That’s roughly a 10-per-cent increase, from the period 2009-2012, in the success rate on such motions in Ontario. According to Tjaden and Karabus, that suggests “a culture shift toward summary judgment appears to be underway.”

A 10-per-cent rise may not sound like a profound change to some, but Karabus, a commercial litigator in Toronto, says the increase is significant considering previous attempts to liberalize the summary regime in Ontario — including the 2010 rule changes giving judges broader powers — had not produced any permanent, noticeable increase in the success rate. Hryniak, on the other hand, appears to have sparked some movement.

While Ontario judges may be more amenable to granting such motions, they appear less interested in taking up the Supreme Court’s call for judges to remain seized of cases when motions for summary judgment fail.

According to Tjaden and Karabus, during Hryniak’s first year, judges who dismissed summary judgment motions at the Ontario Superior Court chose not to remain seized, or failed to address the issue of being seized, in 60 per cent of cases. And in more than half of the decisions, the motions judge was silent on the matter of case management. “I’m a little bit surprised that the uptake on this wasn’t more,” says Tjaden, a research specialist based in Toronto.

He says part of the problem may be that in smaller Ontario cities, judges may be on circuit, making it impractical for them to remain seized of a case in a location they might not return to for months. In other situations, counsel may not have even raised the issue.

Tjaden says as of November 2015, Hryniak had already been cited almost 460 times across Canada in the second year following its release, meaning the number of year-two citations was on pace to outstrip those from year one. And likewise in year two, he says, “my prediction is that we’ll see an uptick in judges remaining seized.”

Outside Ontario, the story of Hryniak’s impact is a mixed bag. Alberta and British Columbia already had expansive summary disposition regimes before Hryniak’s arrival. While the decision seems to have encouraged practitioners in Alberta, and to a lesser extent the other prairie provinces, to apply the process more robustly, the opposite appears true in B.C. For example, the Alberta courts cited Hryniak 66 times in year one alone, while in B.C. the decision was cited only seven times in two years.

Perhaps the difference lies in the fact that for decades B.C. has been home to the most wide-ranging summary trial regime in the country. With Hryniak principles already long embedded in the province’s rules, the decision is unlikely to change the landscape in B.C. “The policies expressed in Hryniak have been actively part of our practice for about 30 years,” says Ken McEwan, an experienced member of Hunter Litigation Chambers in Vancouver. “I haven’t seen that Hryniak has had any significant impact on how we do things day to day.”

That’s not to say there isn’t an access-to-justice problem in B.C., in spite of its generous summary trial rules — proving, says McEwan, that summary disposition is no panacea.

He says if Hryniak accomplishes anything on the West Coast, it will serve to push counsel and judges out of their comfort zone of conducting summary trials strictly on the basis of large volumes of affidavit evidence, when in fact the rules allow for far more creativity. “We don’t use enough hybrid procedure, for example, setting aside time to call a witness or cross-examine a witness,” says McEwan. “I hope that will happen over time.”

On the other side of the country, Hryniak hasn’t made a serious impact either. Nova Scotia’s very restrictive summary judgment rules limit the process to a gatekeeper function of keeping unmeritorious claims out of the system. Elsewhere in Atlantic Canada, the summary judgment rules are more open. Yet, with smaller populations, a lower volume of cases, and far fewer demands on judicial resources, the problem that Hryniak seeks to address isn’t as fully relevant across the region. “In Newfoundland, there isn’t the same institutional problem with access to justice,” says Joe Thorne, a litigator with Stewart McKelvey LLP in St. John’s. “So there hasn’t been a cultural shift in the Atlantic provinces, post-Hryniak.”

Still, Thorne says the Supreme Court was correct to call for a change in attitude among players in the system right across the country. Having once worked as a litigator in Toronto, he remembers the pressures of trying to secure court time in that city for a full trial. “In 2013, before I left Ontario, if you wanted to get a one-week trial in Toronto, you were looking at a year-and-a-half to two years from the date of your application,” he says. “When I came home to Newfoundland, the idea that I could call the court and not only get time fairly quickly but actually get a live human on the other end who would answer my questions — it was manna from heaven.”

Perhaps the cultural shift sought by the Supreme Court won’t appear radically, via institutions as a whole, but quietly and gradually, through individuals working inside those systems, as they consider the opportunities highlighted by Hryniak.

Karabus says the decision has forced him to think seriously about summary judgment as an option in his Toronto practice. “Lawyers in this province know that resources are limited,” he says. “Hryniak definitely gives you pause for thought. It makes you think differently about summary judgment, both how it has been expanded and how its limits are set. I think every lawyer in Ontario has had that thought.”

Even in Newfoundland, where judicial resources are less scarce, Thorne believes Hryniak matters. “Its overarching statements about accessibility, efficiency, and proportionality — those issues are important for every litigator in every jurisdiction.

 “It used to be that summary judgment was the alternative to a trial. I’d like to see a scenario where it becomes the first thing you think of, as opposed to the second.”