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Full Appreciation Test, I Hardly Knew Ye

On Thursday, January 23, 2014 the Supreme Court of Canada released its decision in Hryniak v. Maudlin, the long-running appeal of a successful motion for summary judgment.1 The Ontario Court of Appeal upheld the finding in favour of the moving parties in Combined Air Mechanical Services Inc. v. Flesch,2 wherein the Court of Appeal, in the words of Justice Karakatsanis, “…placed too high a premium on the “full appreciation” of evidence that can be gained at a conventional trial, given that such a trial is not a realistic alternative for most litigants.”3

Instead, Karakatsanis J. provides a “Roadmap/Approach” to motions for summary judgment:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.4

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue  requiring a trial if the summary judgment process provides her with the evidence  required to fairly and justly adjudicate the dispute and is a timely, affordable and  proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. 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.5

Some observers have noted that the court’s discussion of the fact finding powers available to judges presiding at summary judgment motions does not reflect the plain reading of Rules 20.04(2.1) and (2.2).

In order to make the SCC’s approach practicable, the SCC suggests that a cultural shift is required; one that would see judges actively managing the legal process in line with the principle of proportionality.6  The costs and delays than can arise from summary judgment motions can apparently be mitigated by judges “…making use of their powers to manage and focus the process and, where possible, remain seized of the proceedings.” 7

With respect to the ability of judges to ameliorate the cost and delay of trials, Karakatsanis J. writes:

“I agree with the Osborne Report that the involvement of a single judicial officer throughout “saves judicial time since parties will not have to get a different judge up to speed each time an issue arises in the case. It may also have a calming effect on the conduct of litigious parties and counsel, as they will come to predict how the judicial official assigned to the case might rule on a given issue.”8

It is encouraging to see that the SCC is acutely aware of the obstacles most Canadians face in accessing justice through the civil system, but there may be systemic obstacles to the SCC’s practical approach in a system that is already unable to cope with increasing requests for case management.


1. Hryniak v. Mauldin, 2014 SCC 7.
2. Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.
3. Hryniak v. Mauldin, supra note 1, para 4.
4. Ibid., para 49.
5. Ibid., para 66.
6. Ibid., para 32.
7. Ibid., para 6, 78.
8. Para 78.

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