Law Times

Law Times • March 16, 2015 Page 11 www.lawtimesnews.com numbers show profession slow to embrace summary judgment Despite Hryniak, percentage of successful motions has remained the same By JULiUs meLNiTZer For Law Times embers of the pro- fession continue to differ on the im- pact of the Supreme Court of Canada's January 2014 decision in Hryniak v. Mauldin that mandated broader use of summary judgment as a way to speed up access to justice. The numbers that are avail- able, however, indicate that law- yers haven't embraced the con- cept wholeheartedly. Gord Mc- Guire of Adair Barristers LLP in Toronto has discovered that 145 rulings emanated from summa- ry judgment procedures in the 12 months following Hryniak. That was 21 fewer than the 12 months preceding the decision. To be sure, the numbers don't speak to the summary judgment motions pending, reserved or decided without reasons and perhaps by endorsement. What's more revealing, per- haps, are the statistics related to the outcomes of motions for summary judgment. According to the statistics, which McGuire garnered from online legal re- search, Ontario judges granted 55 per cent of the motions for sum- mary judgment they heard in the year preceding Hryniak. During that time, they partially allowed nine per cent and dismissed 36 per cent of the motions before them. In the 12 months thereaf- ter, judges granted 54 per cent, partially allowed 10 per cent, and dismissed 36 per cent of the mo- tions they heard. The numbers lend them- selves to at least three inter- pretations. The first is that the Supreme Court's endorsement of the procedure and the test it enunciated for its application, which gave judges very broad scope in interpreting the Rules of Civil Procedure, has done virtually nothing in promot- ing successful outcomes on such motions. The second in- terpretation is that the Hryniak test, when put into practice, is no broader than the previous standard for granting summary judgment. The third interpreta- tion arises because the statistics don't measure the breadth of the issues raised on the various motions. It would suggest that because the broader test has en- couraged lawyers to seek sum- mary judgment in a wider range of cases, the expanded scope of their applications is limiting their success. Patricia Virc of Steinberg Ti- tle Hope & Israel LLP in Toron- to says summary judgment can benefit the process even when the court dismisses the motion. "That's because the losing party can ask the motions judge, who presumably might have a perspective on narrowing the issues, to remain seized of the case," she says. But McGuire's statistics sug- gest that's not happening. In 61 per cent of the 31 cases in which the court rejected the motion fol- lowing Hryniak, counsel don't ap- pear to have asked the trial judge to remain seized. Again, there are a number of ways of looking at the issue. One perspective is that parties don't see any advantage in hav- ing a judge familiar with a case continue with case management through to trial. A second view is that losing counsel are unlikely to be particularly fond of the mo- tion judge's perspective on the case as a whole. Nevertheless, there's also a hitch to a successful summary judgment motion given the pros- pect of appeal. "If the appeal succeeds, you've just put the parties through two more years of delay before they can get on with the process," says Virc. The difficulty with motions for summary judgment may be that the Supreme Court's test may not be as practical as the Ontario Court of Appeal guid- ance it displaced. The earlier test required courts to decide whether the forensic machinery of a trial is necessary for a full appreciation of the evidence and the issues as well as a fair adjudication. In making such a determination, the Court of Appeal ruled, judg- es could supplement the record with limited oral evidence, weigh evidence, evaluate credibility, and draw inferences. "I thought the full-apprecia- tion approach of the Court of Ap- peal, supported by all five judges and The Advocates' Society, was a bit closer to reality," says Virc. Still, Jillian Evans, who prac- tises personal injury and medical malpractice law at Torkin Manes LLP in Toronto, says Hryniak in its present incarnation brings definite advantages to some cases. "It's hard to speak in generali- ties, but from the perspective of plaintiffs in personal injury sce- narios, anything than can bring a matter to resolution faster and with less expense is a good thing," she says. "The delay and cost involved in going to trial can make a full ad- judication effectively inaccessible, so the more options the better." Still, Evans agrees that sum- mary judgment is "not the be-all and end-all" solution to the is- sues of delay, expense, and ac- cess to justice. "I don't think the Supreme Court thought of it that way," she says. "Broader summary judgment has the potential to be a promising tool for plaintiffs, but not all cases are best served by the procedure." In addition, there had been a cloud looming over the summary judgment process, at least in Toronto. As reported by reporter Yamri Taddese in a Law Times article last month, it had been taking up to seven months to schedule even the simplest motion in Toronto. More com- plex motions, a category into which summary judgment ap- plications arguably fit, took up to three years. On the positive side, judges in motions court, rebranded as the civil practice court by way of a practice direction in the fall of 2014, are starting to peck away at the motions mentality by offer- ing guidance without the need for a formal application should problems or questions arise. As well, a review committee is working to bring the wait time for complex motions down to four months. According to Tad- dese, lawyers say these new ef- forts will help achieve the goals of Hryniak. LT FOCUS MATTER CREDENTIALS TORONTO I BARRIE I HAMILTON I KITCHENER 1-866-685-3311 I www.mcleishorlando.com A Noticeable Difference ™ Choosing a personal injury lawyer is one of the most important decisions an injured person will make. Help your client ask the right questions: Is the lawyer? Untitled-4 1 2015-02-17 10:59 AM M

• Cover