February 28, 2014

Kevin Gourlay

Back in January, the Supreme Court of Canada released its decision in Hryniak v. Mauldin, 2014 SCC 7, dealing with the scope and implementation of summary trial procedures – specifically those provided by Ontario’s rules.  Madam Justice Karakatsanis, on behalf of the Court, extols the virtues of summary trial procedures as a means of improving access to justice.  The judgment begins:

[1]                              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.

[2]                              Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.  This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.  The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

The BC Court of Appeal has already gotten on board, citing Hryniak in Spring Hill Farms v. Nose, 2014 BCCA 66: “As it is, the decision of the summary trial judge to proceed to deal with this matter on a summary basis exemplifies the principles justifying the importance of summary determination as a tool to improve access to justice that was recently discussed by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7 (CanLII), 2014 SCC 7.

Improving access to justice is a laudable goal but there are some difficulties with transplanting Hryniak to BC as well as how the principles espoused therein will be implemented generally.

First, Ontario’s summary trial procedures are much more liberal than our Rule 9-7.  Their rules specifically provide that a summary trial judge may weigh the evidence, evaluate the credibility of deponents, and may order that oral evidence be presented by one or more parties, with or without time limits.  Without comparable provisions, our courts are handcuffed.

Second, the SCC’s discussion of how a summary trial judge can essentially become a trial management judge is rather redundant given that our rules provide for case planning conferences and trial management conferences.  The SCC notes at paras. 76-77 that if a summary trial application is refused or allowed only in part, the summary trial judge may make other orders to allow the case to proceed efficiently.  This includes setting schedules, providing restricted discovery plans, setting trial dates (registry staff would undoubtedly find this problematic), ordering written arguments etc.  Of course, much of this is already dealt with at case planning conferences or our mandatory trial management conferences (though the latter are only late in the day).  If such steps are beneficial – and surely they will be in many cases – it seems odd to wait for one party to bring a summary trial motion to take those steps rather than just utilizing case planning procedures.

Third, the SCC strongly urges that in the absence of compelling reasons to the contrary, a judge that dismisses a summary trial application should seize herself of the matter as the trial judge.  Again, this is a reasonable goal but one that is likely unworkable.  When our new Rules came out, the idea was that trial management conferences would be conducted by the trial judge.  This proved the very rare exception rather than the rule.  Indeed, it proved so unworkable that in 2012 the Rules were amended to allow masters to preside over trial management conferences.  The SCC seems to acknowledge this at para. 79 and states that while it “may complicate scheduling…the courts should be prepared to change their practices in order to facilitate access to justice.

Fourth, and perhaps most importantly, is the real concern that Hryniak will be abused.  Our courts have said repeatedly that a summary trial is still a trial.  If a defendant brings a summary trial application and the plaintiff does not make out their claim, the case will be dismissed.  What this means in practice is that a defendant can set down an early summary trial as a means of forcing a plaintiff to prematurely show his hand.  Plaintiff’s counsel may have valid reasons for claiming solicitor’s brief privilege over certain materials but be forced to disclose that information to defeat a summary trial application.  While the SCC acknowledges the risk that clearly unmeritorious summary trial applications “could be abused and used tactically to add time and expense,” the only redress they offer is that the summary trial judge may dismiss the motion “without engaging in the full inquiry delineated above.”  That will be little comfort to a plaintiff who has been compelled to make early disclosure – the defendant who bears no burden can simply pick-and-choose what materials they file.

Canadian Defence Lawyers is already offering conferences on Hryniak.  We can only assume the purpose of these conferences is to look at how insurers may use Hryniak tactically to defeat claims.  When Madam Justice Karakatsanis penned Hryniak as a call to ensure access to justice and bemoaning the fact that most Canadians cannot afford to sue when wronged or defend themselves when sued, she was not focused on the interests of insurance companies.  Our concern is that the primary outcome of Hryniak will be an increase in tactical summary trial applications brought by insurance companies, increasing the costs and challenges faced by lay litigants.

(A final note of interest from Hryniak: The successful lawyer for the respondent was Javad Heydary, the prominent, disgraced, and presumed dead (but maybe living) principle of multiple boutique firms in Ontario.  At some point after the March, 2013 hearing in Hyrniak, Mr. Heydary fled the country amid allegations of missing money.  He was found in contempt in November, 2013, after failing to repay $2.1M of a $3.6M settlement that should have been held in trust.  It was believed he fled to his native Iran where he died.  A funeral was held in December.  However, questions as to whether Mr. Heydary is in fact deceased remain.

Further, clients who lost their life savings continue to battle insurers for compensation.


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