Friday, 24 January 2014

Supreme Court of Canada Provides Guidance on Summary Judgment: What it Means for the Suddenly Unemployed

After four years of waiting, the Supreme Court of Canada has weighed in on the proper interpretation and approach to Ontario’s Summary Judgment procedure. The decision is a game-changer for litigation.

In its unanimous decision in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), authored by the Honourable Justice Karakatsanis, the Court has clearly said that the preferred route for disposition of lawsuits is not the trial as we know it.

For the reasons set out below, it is this author’s opinion that this decision will undoubtedly have a positive influence on the resolution of cases for the suddenly unemployed.

What Summary Judgment Is

Summary Judgment is a method by which parties involved in a lawsuit can obtain a resolution to their case without the need for a conventional full trial and all of the pre-trial process associated with the same. That pre-trial process may involve examinations for discovery and pre-trial motions for the production of various documents, etc.

Summary Judgment is usually obtained by way of a “motion,” which often means that the parties do not provide oral evidence, but rather the case is presented based solely upon a written record of affidavit evidence and legal submissions.

In 2010, Ontario’s Rules of Civil Procedure were changed to provide for a more liberal approach to summary judgment. Whereas the rule allowing summary judgment to be granted previously provided that summary judgment was to be granted if there was an issue for trial, in 2010 the rule was changed to say that summary judgment must be provided unless there was a genuine issue requiring a trial.

What the Court Said

In her opening paragraph to her reasons for decision, Justice Karakatsanis wrote the following:

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.

In addressing the issue of when there will be a “genuine issue requiring a trial” Justice Karakatsanis wrote this:

[49] 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.

Then, in providing what Her Honour described as a “roadmap,” Justice Karakatsanis added what is sure to be an often-repeated piece of guidance for the courts:

[66] On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

What Does this Decision Mean for the Suddenly Unemployed?

The use of the Summary Judgment procedure for the resolution of employment law cases, especially wrongful dismissal cases, has long been recognized by the Ontario courts as an appropriate method for the resolution of such cases: Adjemian v. Brook Crompton North America, (2008), 67 CCEL (3d) 118; 2008 CanLII 27469 (ON SC) (CanLII))

However, this new decision from the Supreme Court of Canada should serve to further bolster the position that summary disposition of such cases is the preferred route for most wrongful dismissal cases.

How the Employment Lawyers Kelly Santini LLP can be of Service

The employment lawyers at Ottawa’s Kelly Santini LLP are all experienced litigators. Sean Bawden, the editor of this blog, argued one of the first summary judgment motions in Ontario following the change to the rules in 2010: 595799 Ontario Limited v. Galpin, 2010 ONSC 2083 (ON SC) (CanLII) (argued March 16, 2010) and was successful both in the Ontario Superior Court of Justice and the Court of Appeal for Ontario (2010 ONCA 834 (CanLII))

If you find yourself suddenly unemployed in Ontario, The professional, experienced and cost- effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you. To reach the author of this blog, Sean Bawden, email or call 613.238.6321 x260.

If you are an employer, and find yourself accused of having wrongfully dismissed an employee, The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization. To reach the author of this blog, Sean Bawden, email or call 613.238.6321 x260.


As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantin or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice. He is a trustee of the County of Carleton Law Association.

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