Toronto Summary Judgment Motion Lawyers
Appeal of Summary Judgment in Ontario
Access to Justice | Hryniak v. Mauldin

The legal landscape has shifted for small and medium-sized businesses in litigation.

Trials and the procedure and proceedings leading to trial are expensive and time consuming for all parties to legal proceedings. Justice delayed is justice denied.  Likewise, justice which the parties to the proceedings cannot afforded is not justice.

Better access to justice has arrived by changes in the law making summary judgment more readily available in civil and commercial legal proceedings.

Summary Judgment

The Supreme Court of Canada has promoted better access to justice through summary judgment, partial summary judgment, and summary trials.

This is good news for small and medium businesses who previously could not afford a trial or the viability of a trial as a dispute resolving mechanism.

Some of our lawyers have been at the vanguard of legal developments in this new access to justice, including both obtaining and responding to summary judgment motions, in widely reported and leading decisions in this field.

Hryniak v Mauldin – Supreme Court of Canada on Summary Judgment 

Although our firm did not act in that case, one of the lawyers at our firm who practices in the area of commercial litigation, appeared as co-counsel for the 13 plaintiffs (one of which was Mauldin) who responded to the appeal to the Supreme Court of Canada in Hryniak v. Mauldin, responded below to the appeal in the Ontario Court of Appeal, and who obtained summary judgment in the Ontario Superior Court of Justice, being the judgment which was appealed.

David Alderson, Senior Counsel – Commercial Litigation, at Gilbertson Davis LLP, is the author of the chapter entitled Sentinels of the Hryniak Culture Shift: Four Years On,^[1] included in the Annual Review of Civil Litigation 2018, (Ed. by the Honourable Justice Todd L. Archibald, published by Thomson Reuters Canada Limited), a copy of which can be accessed here, and which contains the following in the Overview:

Before embarking upon a summary judgment motion, all counsel should carefully read Mr. Alderson’s paper because it provides superb guidance concerning the prospects of success not only before the motions judge but on appellate review. Mr. Alderson’s paper is a comprehensive tour de force for all advocates. (click here for full Overview)

– The Hon. Justice Todd Archibald, Ontario Superior Court of Justice

David Alderson has now written a second chapter, Emerging Burdens of the Summary Judgment Motion Judge, included in the Annual Review of Civil Litigation 2021, which picks up where the earlier chapter left off, and canvases appellate decisions across Canada for the next three years. It includes the following in the Overview:

Mr. Alderson’s paper is extremely important for all practicing litigators. His survey is first class and his conclusions must be understood by our legal community.

– The Hon. Justice Todd Archibald, Ontario Superior Court of Justice

Together, these two chapters of the Annual Review of Civil Litigation comprise a 141 page seven year survey of appellate decisions across Canada considering Hryniak and summary judgment, They can be read together, with the later chapter cross-referencing the earlier one.

This case has had such a significant impact on civil legal proceedings in the courts in Ontario, including with respect to the access to justice, that it has, in the course of nine years since the decision was released, been cited in 5,000 reported decisions of the courts and tribunals in Canada and over 2,600 reported decisions in Ontario alone.

David Alderson was the Chair / Moderator of Osgoode Hall Law School’s webinar entitled Summary Judgment in the Supreme Court of Canada: Hryniak v Mauldin and Its Implications.

^[1] cited in CMT et al. v. Government of PEI et al., 2019 PESC 40, at 44 to 46.

The Test on Summary Judgment Motions

In determining whether summary judgment is suitable the Supreme Court of Canada in Hryniak v. Mauldin laid out the following test.

“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.”

The courts in Ontario have embraced the cultural shift endorsed by the Supreme Court of Canada and are interpreting the summary judgment rules broadly, and favouring proportionality and fair access to affordable, timely and just adjudication of claims.

Our Approach to Civil Litigation

Accordingly, we carefully consider each case in which we act at an early stage of the proceedings to examine and analyze the prospects of successfully bringing (and successfully responding to) a motion for summary judgment.  Having been involved in a number of summary judgment motions our team has developed a timely and efficient process to determine the best way forward in legal proceedings – including a determination whether a motion for summary judgment, rather than a traditional trial, would be proportionate, more expeditious and a less expensive means to achieve a just result in the case.

Changes in the law in this area make it important for clients to consider the experience of their counsel in bringing and responding to motions for summary judgment in civil and commercial legal proceedings in Ontario.

Please contact Gilbertson Davis LLP for an initial consultation to determine if your intended legal proceedings are suitable for a motion for summary judgment.