Hryniak v. Mauldin: Summing up Summary Judgment

Terry Snyder, Wikimedia Commons

Whitby Courthouse

SCOPE contributor Andrew Hyland examines a recent Supreme Court of Canada decision and explains the possible implications for paralegals who practice in small claims.

The Supreme Court ruled recently on summary judgments. How will this affect current jurisprudence behind Rule 12.02 motions and recent developments in the Small Claims Court, in the wake of Hryniak v. Mauldin?

“Ensuring access to justice is the greatest challenge to the rule of law in Canada today.”

So wrote Supreme Court of Canada Justice Andromache Karakatsanis, in the unanimous Hryniak v. Mauldin, 2014 SCC 7 (CanLII). “Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective means for enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted”.

To that end, the Court called for a “culture shift” in order to create an environment that promotes “timely and affordable access to the justice system,” a simplification of pre-trial procedures, and moving the emphasis away from a conventional trial. Instead, the Court called for proportional procedures “tailored to the needs of the particular case.” They suggest the justice system should strike a balance between access to justice and procedure, to reflect “modern reality” while recognizing that “new models of adjudication can be fair and just.”

“No genuine issue requiring a trial” vs. “No meaningful chance of success”

For the Supreme Court, summary judgment is one such means. Hryniak amends the test for summary judgment under Rule 20 of the Rules of Civil Procedure. The test changes from “No genuine issue for trial” to “No genuine issue requiring a trial” — a change which, in the words of Justice Karakatsansis, demonstrates that “a trial is not the default procedure.”

The Court moved away from prior jurisprudence governing Rule 20 motions and endorsed the following standard: “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.”

How does this apply to a court that is already explicitly constituted to “hear and determine in a summary way all questions of law and fact”? (see the Courts of Justice Act, R.S.O. 1990, c.C.34, s.25)

One Case Provides Insight

The recent case of Tuka v. Butt, 2014 CanLII 7228 (ON SCM) provides insight into Hryniak‘s applicability in the Small Claims Court.

In deciding whether to dismiss a Defendant’s Claim under Rule 12.02, Deputy Judge Winny references the Court of Appeal for Ontario’s ruling in Van de Vrande v. Butkowsky, 2010 ONCA 230 (CanLII). In Van de Vrande, the Court of Appeal ruled out the availability of a summary judgment motion in the Small Claims Court. Writing for the panel, Justice Paul Rouleau held that the lack of summary judgment motions in the Small Claims Court was not “a gap in the Small Claims Court Rules, but rather a deliberate omission,” and that “it is not up to the court to read in such a provision, particularly in light of the fact that Rule 12.02 specifically addresses the ability to bring a motion in the nature of those contemplated by Rules 20, 21, and 76 of the Rules of Civil Procedure.” 

Justice Rouleau wrote that Rule 12.02 was specifically worded to create a lower threshold than the jurisprudence around Rule 20 and 21, “in keeping with the spirit of the summary nature of Small Claims Court proceedings.” The test, as developed by Winny in Diler v. Uppal, [2010] O.J. No. 1903 (Sm. Cl. Ct) and applied by the Divisional Court in O’Brien v. The Ottawa Hospital (Campus), [2011] O.J. No. 66 (Div. Ct.), 2011 ONSC 231 (CanLII), is “no meaningful chance of success.” This is to be applied in cases where dismissal at trial is “effectively a forgone conclusion.”

Does Liberal Use of Rule 20 Apply?

The question remains, however: in light of the Hryniak decision, has the need for a separate test become, as Winny asks in Tuka, “completely undermined?”

Winny writes that “all of the policy reasons that Justice Karakatsanis finds to support a liberal use of Rule 20 would seem to apply in Small Claims Court” and that a good argument may be made that the need to conceptually separate Rule 12.02 from Rule 20 is now gone. However, Winny points out that the procedure under Rule 20, such as the ability to cross-examine on affidavits and examinations of witnesses, does not exist in Small Claims Court. Hryniak also fails to address Rule 21 of the Rules of Civil Procedure.

Commenting on the case of Petersen v. Matt, 2014 ONSC 896 (CanLII), in which the Divisional Court applied Hryniak in dismissing a Small Claims Court appeal from a summary judgment ruling, Winny notes that neither the deputy judge nor the Divisional Court referred to either Rule 12.02 or Van de Vrande. In fact, the court appeared to be unaware of the decision.

Questioning whether the court would have affirmed the decision had it been made aware that Rule 20 does not apply in the Small Claims Court, or that the jurisprudence surrounding the concept of “no genuine issue for trial” should not be applied in the Small Claims Court, Winny held that: “In my respectful opinion, Petersen v. Matt, supra, does not stand for the proposition that Van de Vrande, supra, is no longer good law. It neither acknowledges, discusses nor resolves that issue.”

Resolution Could Be on Horizon

Concluding his analysis of recent developments, Winny states that, despite despite Van de Vrande, the appropriate course of action for a Deputy Judge is to wait for an appellate court to decide whether the test under Rule 12.02 should be different than Hryniak. Such a ruling may come from the Court of Appeal itself.

Tuka v. Butt is, to my knowledge, the first attempt by the Small Claims Court to discuss the interplay between Hryniak and Van de Vrande as it relates to 12.02 motions. We must wait for a case to brought to the appellate court, for more guidance. I believe it would be appropriate if such a case were brought by a paralegal.

 

Andrew Hyland

Photo: Andrew Hyland

Andrew Hyland is a Small Claims practitioner, owner of Veritas Legal Services, and a Director of the Ontario Paralegal Network (OPN). Reach Andrew at:

andrew.hyland@vlsparalegal.com

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