Is today yesterday?

Four-year-olds have an amazing ability to ask very confusing questions, including my son’s “Is today yesterday?” I found myself asking a similar question when considering some recent cases regarding the summary judgment/trial process in Newfoundland and Labrador.

Summary judgment/trials (or, as we in Newfoundland call it, “Rule 17A Applications”) have been frequently, and successfully, used in Newfoundland since 1995 — long before the 2010 amendments to Ontario’s summary judgment rule or the Supreme Court of Canada’s 2014 decision in Hryniak v Mauldin.

When asked whether the decision in Hryniak changed the law regarding summary trials in Newfoundland, my answer was no — the summary trial process was already a robust and frequently used process that was generally achieving the stated goal of providing an expeditious and relatively inexpensive process to determine matters that could not survive “a good, hard look.” Hryniak generally reflected the status quo of summary trial in Newfoundland.

The process in Newfoundland was explained in the oft-quoted decision Marco Ltd. v. Newfoundland Processing Ltd. et al. Specifically, the party applying for summary trial (whether plaintiff or defendant) has the burden of establishing that the matter is appropriate to be addressed through the summary trial process as a “threshold issue.” 

This “threshold test” has been the subject of some dispute. Note that the rule itself does not reference either a threshold test or a two-step test.

There appears to be agreement that the threshold test is conducted in two stages. The first step of the threshold test is that the applicant must bring itself within the summary trial rule by demonstrating that, based on the affidavit and documentary evidence, there is an appropriate evidentiary basis for the claims (or defences). 

Second, the court considers whether the summary trial is an appropriate mechanism. This engages the court’s inherent jurisdiction to control its own process. 

In 2006, the SCC in Corner Brook, Nfld. issued a practice note relative to “Procedure in Applications for Summary Trial.” This practice note affirmed the two-step test for the threshold issue and outlined that there would normally be two hearing dates. The first return date would be to deal with the threshold (appropriateness for summary trial) issue. If appropriateness is found, a second date would be given for the summary trial hearing. 

In 2010, there were two different approaches taken to the threshold test. In Rowsell v. MacKinnon, the court held a separate hearing on the threshold decision. It is unclear whether the court actually considered the issue of whether a separate hearing was appropriate or not.

Also in 2010 was the case Murphy v. Crosshair Exploration & Mining Corp. In Murphy, the respondent to a summary application applied to the court for a determination that the threshold test be determined at a separate hearing. Essentially, the argument was that it was unjust for the responding party to have to prepare and attend a three-day summary trial before it was determined whether the matter was even appropriate for summary trial in the first instance. The court dismissed the application, determining that the nature of the threshold test could not be separated and needed to be heard together with the summary trial application itself.

Fast forward to 2016 where the court releases its decisions in Dalley v. Northern Arm (Town) and Drover v. King, et al. The court in Dalley departed from Murphy and went back to a two-hearing process. Dalley reiterated the two-part threshold test and then went on to state that, if both parts of the threshold test are met, the court could proceed with the remainder of the summary trial issue the same day or the court could set the matter over to another date. The judgment in Dalley ended by stating that there is no “one size fits all” approach.

Drover involved an application for summary trial following requesting a claim be dismissed on the basis that it was barred by a release the plaintiff had previously signed. At the outset, all counsel agreed that summary trial was the appropriate process. Ultimately, the court decided that the matter was not appropriate for summary because there were credibility issues. 

As it stands right now, there appear to be three separate processes:
    1. The court determined the threshold test in a preliminary separate hearing;
    2. The court determines the threshold test and, if the test is met, moves immediately into the summary trial hearing, or
    3. The traditional way in which the threshold test is argued and determined at the same time as merits of the summary trial application.

As someone who regularly makes summary trial applications, I can certainly see both sides of the dispute regarding whether the threshold test should be determined at a separate hearing.  On the one hand, two hearings are more expensive than one. On the other hand, if the summary trial is going to involve cross-examination of witnesses, it is a complete waste to have those individuals travel and attend court when you are not even sure whether the threshold test will be met. It also takes quite a lot of work to respond appropriately to a summary trial application, and all of that effort is unnecessary if the matter isn’t appropriate for summary trial in the first instance. 

Personally, this issue of the threshold test appears to have become more of a distraction rather then something that is contributing to access to justice or reducing the cost and complexity of litigation.

Perhaps the solution to this issue can be found in Hryniak. The SCC (while interpreting the Ontario rules) stated that the judge in a motion (application) for summary judgment (trial) should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using expanded fact-finding powers.

If there is a genuine issue for trial, then the judge has discretion to use fact-finding powers, including cross-examination, to make those determinations provided that it is within the interests of justice to do so. Specifically, “their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.” Maybe the SCC has already made today’s threshold test part of yesterday.