Law Times

Law Times • apriL 20, 2015 Page 11 www.lawtimesnews.com Hryniak fallout Is summary judgment appropriate for class actions? BY JULIUS MELNITZER For Law Times n Hryniak v. Mauldin, the Su- preme Court of Canada both liberalized and revitalized Canadian courts' approach to summary judgment. But most of the extensive commentary so far on the case's implications has fo- cused on traditional litigation. To be sure, there have been a few class actions resolved by sum- mary judgment in Canada both before and after Hryniak, includ- ing the Ontario Court of Appeal's 2012 decision in Fairview Donut Inc. v. The TDL Group Corp. and the Alberta Court of Appeal's 2014 decision in Windsor v. Cana- dian Pacific Railway Ltd. "As many class actions are de- cided on questions of law or on records that are largely documen- tary, the procedure is likely appro- priate in many more cases than we've seen so far," says Rebecca Jones of Lenczner Slaght Royce Smith Griffin LLP in Toronto. "I expect that we'll see more summary judgment motions go- ing forward." The most recent application of the summary judgment proce- dure to class actions came in the January 2015 decision of Justice Edward Belobaba of the Ontario Superior Court of Justice in San- kar v. Bell Mobility. The class action concerned prepaid cellphone services and the expiry of unused top-up pay- ments. As the plaintiffs hadn't pleaded promissory estoppel or misrepresentation, which re- quired proof of individual reliance that would have made their action inappropriate for certification, the court certified the action, in Belobaba's words, "as a straight- forward contractual and statutory interpretation case." The core common issues were whether Bell Mobility Inc. had breached its contract with class members by seizing unused pre- paid credits before it was contrac- tually entitled to do so and wheth- er the expiry and forfeiture of the credits was contrary to provincial gift-card regulations. After noting it was a "textbook" case of a class action suitable for summary judgment because it in- volved a pure question of contrac- tual interpretation that the court could determine on the docu- mentary record, Belobaba found against the plaintiffs on both is- sues and dismissed the claim. "Hryniak has now been around for some time," says Jones. "More people are thinking about it in the context of class actions and more judges seem willing to do it." Jones cites Ramdath v. George Brown College, a case in which the appeal court upheld a judg- ment in favour of George Brown College students who had been misled as to the benefits of the school's international business management program. "The evidence in that case went in entirely through read-ins and affidavits, and it may well be that it could have been decided on sum- mary judgment at first instance," says Jones. "Although it did pro- ceed as a common issues trial, it was not that different from a sum- mary judgment proceeding." According to Jones, the ob- jectives of summary judgment overlap with the Class Proceed- ings Act's enunciated goal of promoting access to justice. "The things that make a case amenable to certification can also make it amenable to sum- mary judgment," says Jones. "And both invoke the courts' concern about efficiency and ac- cess to justice." But Jonathan Ptak of Koskie Minsky LLP in Toronto has his doubts. "The jury's still out because the themes and emphasis in Hryniak focus on using summary judgments when it is proportional and effective to do so, " he says. "In class actions — at least in large ones — proportionality is not as relevant as it might be in individual cases." Still, Ptak adds, judges must ultimately answer the same ques- tion whether they're dealing with individual cases or collective ones. "It all comes down to whether the facts and issues are simple and straightforward and nar- row," he says. "If the court embarks on a sum- mary judgment procedure where these conditions are not present, the judge will be swamped with a mountain of evidence on a paper record that may well include con- flicting expert reports. And what will the motions judges do with that if they don't have the machin- ery of a trial with which to do it?" There are also issues related to the timing of a summary judgment motion. "If you choose to do it with the certification motion, it can ex- pand the inquiry because it takes you into a full-blown consider- ation of the merits," says Ptak. "That, in turn, raises delay is- sues, particularly regarding the certification motion." As Ptak sees it, backing up a case early on with a cumbersome summary judgment motion can also affect access to justice. "It substantially affects the flow of proceeds by making things more expensive and in- troducing cost consequences at an early stage," he says. In attempting to discern Hryniak's impact on class ac- tions, it's instructive to look at the statistics regarding summary judgment motions generally in the wake of the landmark ruling. Gord McGuire of Adair Bar- risters LLP in Toronto has dis- covered that 145 rulings ema- nated from summary judgment procedures in the 12 months following Hryniak. That was 21 fewer than during the 12 months preceding the decision. To be sure, these numbers don't speak to the summary judgment FOCUS Get insightful interpretation of the latest developments in the Federal Courts Act, Federal Courts Rules, jurisdiction, and practice. And this 25th edition of Federal Courts Practice gives you even more. Order now and get the Thomson Reuters ProView™ eBook, which you can access on your iPad, Android device or web browser, and a free authored update supplement. 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Available as a Thomson Reuters ProView™ eBook Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 00224US-A46623 I 'The things that make a case amenable to certification can also make it amenable to summary judgment,' says Rebecca Jones. See Summary, page 13

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