Law Times

Law Times • December 3, 2018 Page 15 www.lawtimesnews.com Impact of summary judgments still evolving BY MARG. BRUINEMAN For Law Times S ummary judgment mo- tions have become an im- portant tool for civil liti- gators since the Supreme Court of Canada indicated a "culture shift" was necessary nearly five years ago. Lawyers say they can provide an opportunity in medical mal- practice cases and other types of civil litigation for both defence and plaintiff counsel to make the litigation process more ef- ficient. But, they add, their use con- tinues to evolve and there re- mains room for improvement. In 2010, Ontario's Rules of Civil Procedure were amended, expanding the power of judges, allowing for a broader use of summary judgments and mak- ing the focus evidentiary based. Four years later, through Hryniak v. Mauldin, the Su- preme Court interpreted those rules to signal that more cases could benefit from summary judgment motions to help ease an overburdened court system. A case may be dismissed through a motion early in the litigation process or the issues whittled down, resolved or dis- missed, saving valuable court time. "I think the goal of the case when the Supreme Court called for a culture shift was to make it more of a model of adjudication so that substantive issues were being determined on summary judgment in a way that made the litigation as a whole either re- solved it or narrowed the issues," says Jessica Fullerton, an Ottawa plaintiff personal injury lawyer with Nelligan O'Brien Payne LLP, who has researched and presented on summary judg- ment motions. "The call for change from the Supreme Court was to look at different models of adjudica- tion and one of those models was summary judgment," she says. Fullerton points to the first paragraph of the Hryniak de- cision, in which the justices consider access to justice as the greatest challenge to the rule of law in Canada and encouraging courts, lawyers and litigants to look at different models of adju- dication. She says there is recognition of the need for a more timely, more proportionate and more cost-effective litigation process as well as a need to balance judi- cial resources. But the process still seems to be evolving, says Fullerton. In Ontario, it takes months to get a summary judgment motion and, sometimes, the outcome of those motions actually delays the resolution of the action over- all and makes everything more expensive instead of making the litigation quicker and more cost effective, she says. "I think we're just in this pe- riod of adjustment trying to grapple with how do we use this. It's not a new tool, but it's an ex- panded tool," says Fullerton. Toronto personal injury law- yer Charles Gluckstein, a part- ner at Gluckstein Personal In- jury Lawyers PC, says that, prior to 2010, there was language that "made it almost impossible to bring a summary judgment mo- tion unless the pleadings really didn't assert a cause of action." Gluckstein had some success for the plaintiff in the medi- cal malpractice case Duggan v. Lakeridge Health Corpora- tion a year ago, bringing a par- tial summary judgment motion to advance funds for the client's care while the case remained be- fore the courts. Earlier in the case, there was a consent summary judgment motion that dealt with and dis- posed of the issue of the liability of the doctor, in which the doc- tor essentially admitted respon- sibility for the birth injury, in the manner in which the delivery was done, he says. And, although there had been some funds forwarded by the defence to provide care and assistance to the child, who has cerebral palsy, more money was required as the case continued to work its way toward resolution, he says. "We tried to get a large amount of damages resolved. That was rejected. But now we were running out of funds be- cause the trial kept on getting put off," says Gluckstein, who adds that the defence refused the request for an additional $600,000 for the chld's ongoing care. "With that on the radar, the runway for funds was gone and this judge, [who] was well aware of all the issues, knew that re- quired more intervention." When negotiation on that is- sue failed, the plaintiffs turned to the judge, successfully using a partial summary judgment mo- tion that Gluckstein calls a "very useful tool." The money was advanced, but it came with conditions, says Gluckstein. And because the two sides couldn't come to an agreement, it sat in an account, unused, until the case was final- ly resolved this past November, he adds. Toronto personal injury and insurance defence lawyer Ste- phen Ross has had the opposite experience with summary judg- ment motions. "The rules changed, and that was one thing. I think the fun- damental change was supposed to be ushered in with Hryniak in that Supreme Court of Can- ada case and it showed a lot of promise in terms of an ability to get judicial intervention and judicial determination in a case rather than what I would call an unhappy settlement," he says. Initially hopeful by the rule amendments, Ross and his col- leagues at Rogers Partners LLP filed several summary judg- ment motions early on with no MEDICAL MALPRACTICE LAW Untitled-2 1 2018-06-04 3:42 PM Jessica Fullerton says there is recognition of the need for a more timely, more pro- portionate and more cost-effective process for litigation as well as a need to balance judicial resources. See Motions, page 16

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