Law Times

Page 8 February 13, 2017 • Law Times www.lawtimesnews.com Culture shift due to Hryniak Have summary judgments changed the landscape? BY DALE SMITH For Law Times I t has been three years since the Supreme Court of Canada ruled in Hryniak v. Mauld- in, and lawyers in Ontario say that a culture shift is definitely happening in the courts with respect to summary judgment motions. However, they say some aspects are taking longer to catch on than others. "Cases were getting bogged down, they were costing too much and people were mov- ing their cases out of the pub- lic courts," says Bradley Berg, a partner with Blake Cassels & Graydon LLP in Toronto and president of the Advocates' So- ciety. "Either they were settling them where they shouldn't have been settled or they were mov- ing them to arbitration. I can tell you in my own practice, which I think is pretty representative of commercial litigators, half of my practice is now arbitration work instead of litigation." Berg says that before Hryn- iak, clients were getting frus- trated with the length of time it took for matters to make their way through the public courts and the expenses incurred. Hryniak ruled that sum- mary judgment motions must be granted whenever there is no genuine issue requiring a trial, and that there will be no genu- ine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for sum- mary judgment. The Advocates' Society, which intervened in Hryniak, were pleased with the result. In the time since, Berg's experi- ence is that summary judgment is now considered in almost ev- ery case he has come across and more motions are being brought than ever before. "Summary judgment is being granted, in whole or in part, in most cases where it's brought," says Berg. Shantona Chaudhury, part- ner with Pape Barristers PC in Toronto, agrees with Berg that a culture shift has occurred due to the ruling. "People are thinking more and more about how do I streamline this, how do I reduce this from a full-blown trial to something that's more efficient and more manageable," she says. Part of that shift means that more evidence is now being sub- mitted as affidavit rather than live testimony, she says, and the trial focuses more on cross- examination. "I think it's a very positive thing for the entire system," says Chaudhury. "That's how they do it in Eng- land, that's how most commer- cial arbitration works, and it's a much more efficient way of pro- ceeding," she says. "It's a heavy onus on the judge, because they have to learn a lot more before- hand." Some litigators, such as How- ard Borlack, partner with Mc- Cague Borlack LLP in Toronto, are still seeing a bit of reluctance to move summary judgment motions, in part because of the cost consequences. "Before, your materials were pretty limited because you were worried about dealing with is- sues of credibility, so you'd try to frame your materials to not raise any issues of credibility," says Borlack. "Now you have a little more leeway in that area. The materials are a little more exten- sive and the cross-examination is a little more extensive, and the mass of material." Borlack says lawyers making a summary judgment motion need to make the argument that there's no significant evidence that they would hear at trial that would change what the judge could do with the record before it. As a result, they want the re- cord to be more complete, which could mean hearing from other potential witnesses as part of the affidavit evidence submitted. Borlack adds that summary judgment used to be used by plaintiffs more, but since Hryn- iak, he has noticed a shift. "It's given a boost to defen- dants to get out of stuff when it's a weak cause of action, weak facts in support of it or weak law," says Borlack. "It's encour- aged defendants to be more pro- active." Figures provided by Ontario Court of Appeal Justice David Brown at the County of Car- leton Law Association's civil litigation conference in No- vember 2016 showed that from 2014 to mid-October 2016, 80 per cent of summary judgment appeals brought before the On- tario Court of Appeal were dis- missed. Berg said that the appellate level is part of the Hryniak de- cision that can't be overlooked, where the Supreme Court of Canada gave guidance that sum- mary judgment motions should not be judged to a standard of perfection, giving deference to the motions judge unless there is a clear error of law. "The courts are listening," says Berg. "They're letting these motions decisions stand." As part of Justice Brown's presentation on the appellate experience of summary judg- ment, he noted that, in some regions, summary judgment notions have become "trials-in- a-box," where counsel are not providing motions judges with the degree of assistance required for a litigation step that could dispose of the case on the merits, but, rather, they have taken the attitude that the judge can find what's important "somewhere in the box." Brown said that motions judges don't have the time to look in that box for answers, but they require guidance from ad- vocates. FOCUS ON Litigation Shantona Chaudhury says people feared that Hryniak would mean an end to trials, but that never happened. See Defendants, page 12 FOCUS IT'S TIME TO RANK… WHICH DO YOU THINK ARE THE LEADING PERSONAL INJURY BOUTIQUES AND ARBITRATION CHAMBERS? Complete the survey online at canadianlawyermag.com/surveys and make your picks. VOTING IS OPEN UNTIL FEBRUARY 21 ST Untitled-3 1 2017-01-10 1:42 PM

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