effecting a culture shift – an empirical review of ontario’s summary judgment reforms ·...

Effecting a Culture Shift – An Empirical Review ofOntario’s Summary Judgment Reforms

by

Brooke MacKenzie

A thesis submitted in conformity with the requirementsfor the degree of Master of Laws

Faculty of LawUniversity of Toronto

© Copyright by Brooke MacKenzie, 2016

ii

Effecting a Culture Shift – An Empirical Review ofOntario’s Summary Judgment Reforms

Brooke MacKenzie

Master of Laws

Faculty of LawUniversity of Toronto

2016

Abstract

This paper presents an empirical analysis of all reported summary judgment decisions in Ontario

between 2004 and 2015, in order to explore whether amendments to the court rules actually

achieved their intended effects of improving the efficiency and effectiveness of dispute

resolution and making the civil justice system more accessible and affordable.

By reviewing trends in the number and outcomes of summary judgment motions throughout the

study period, we can conclude that the amendments to Ontario’s summary judgment rules have

made strides towards their intended goal. We observe an increase in the number of summary

judgment motions determined, an increase in the number of summary judgment motions granted,

and, broadly, an increase in the proportion of successful summary judgment motions since the

reforms. The data analyzed in this study demonstrate that the “culture shift” promoted by the

Supreme Court of Canada following the implementation of the new rule is underway.

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Acknowledgments

I wish to thank Professor Albert Yoon for his thoughtful guidance in the preparation of this

paper, as well as Professors Anthony Niblett and Andrew Green for their helpful comments.

Peter Wells of McMillan LLP was most helpful in providing the data collected for his paper on

summary judgment reforms with Adrienne Boudreau, “It Was Déjà Vu All Over Again”, and I

am also grateful to Stephen Ross and Nathaniel Dillon-Smith for providing a copy and

discussing with me their paper “A Real ‘Culture Shift’ Post-Hryniak?”.

Finally, I would like to thank Jonathan Morris-Pocock who, in addition to being a supportive

husband, developed a software program to automate a great deal of the data collection and data

entry required for this project.

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Table of Contents

ACKNOWLEDGMENTS ..............................................................................................................................III

TABLE OF CONTENTS.............................................................................................................................. IV

LIST OF TABLES......................................................................................................................................... V

LIST OF FIGURES...................................................................................................................................... VI

LIST OF APPENDICES ............................................................................................................................. VII

INTRODUCTION ..................................................................................................................................1

BACKGROUND: RULES, REFORM PROPOSALS, AND AMENDMENTS.......................................22.1 RULE 20: THE HISTORY OF SUMMARY JUDGMENT IN ONTARIO ...........................................................22.2 THE OSBORNE REPORT ..................................................................................................................62.3 AMENDMENTS TO THE RULES OF CIVIL PROCEDURE IN 2010 ......................................................... 10

COURTS’ INTERPRETATION AND USE OF AMENDED RULE 20 ............................................... 133.1 ONTARIO SUPERIOR COURT: KEY DECISIONS IN 2010-2011 .......................................................... 133.2 ONTARIO COURT OF APPEAL: COMBINED AIR AND THE “FULL APPRECIATION” TEST ......................... 153.3 SUPREME COURT OF CANADA: HRYNIAK AND THE “CULTURE SHIFT” ............................................... 19

LITERATURE REVIEW: COMMENTARY ON AMENDMENTS AND THE HRYNIAK“CULTURE SHIFT” .......................................................................................................................... 23

EMPIRICAL REVIEW OF SUMMARY JUDGMENT DECISIONS IN ONTARIO (2004-2015) ......... 295.1 GOALS OF STUDY......................................................................................................................... 295.2 METHODOLOGY ........................................................................................................................... 30

5.2.1 Source of data (judgments) .................................................................................................. 305.2.2 Method of sorting and coding judgments.............................................................................. 315.2.3 Notes respecting the comprehensiveness of the dataset..................................................... 34

5.3 NUMBER OF MOTIONS FOR SUMMARY JUDGMENTS RENDERED........................................................ 365.4 NUMBER OF MOTIONS FOR SUMMARY JUDGMENT GRANTED............................................................ 425.5 PROPORTION OF MOTIONS FOR SUMMARY JUDGMENT GRANTED ..................................................... 445.6 OTHER FINDINGS ......................................................................................................................... 47

5.6.1 Self-represented plaintiffs and summary judgment motions................................................. 475.6.2 Subsets of the Superior Court: The Commercial List & Masters.......................................... 515.6.3 Prevalence of cross-motions for summary judgment ........................................................... 54

ANALYSIS & DISCUSSION.............................................................................................................. 566.1 SUMMARY CONCLUSIONS ............................................................................................................. 56

6.1.1 Number of summary judgment motions decided .................................................................. 566.1.2 Number of summary judgment motions granted .................................................................. 576.1.3 Proportion of summary judgment motions granted............................................................... 576.1.4 Self-represented litigants ...................................................................................................... 586.1.5 Masters vs. judges ................................................................................................................ 596.1.6 Cross-motions for summary judgment.................................................................................. 59

6.2 LESSONS FOR FUTURE CIVIL JUSTICE REFORM............................................................................... 606.3 QUESTIONS FOR FUTURE STUDY................................................................................................... 61

CONCLUSION................................................................................................................................... 63

BIBLIOGRAPHY ........................................................................................................................................ 64

APPENDICES ............................................................................................................................................ 67

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List of Tables

Table 1: Number of summary judgment motions granted, partially granted, and dismissed, by year of judgment(2014-2015). ................................................................................................................................................................ 42Table 2: Proportion of summary judgment motions granted, partially granted, and dismissed, by year ofjudgment (2014-2015)..................................................................................................................................................44Table 3: Number and outcomes, and success rates of summary judgment motions brought by a representedparty against a self-represented party (2004-2015). ....................................................................................................50Table 4: Number and outcomes of summary judgment motions brought in actions on the Commercial List(2004-2015). ................................................................................................................................................................52Table 5: Number and outcomes of summary judgment motions brought in actions on the Commercial List(2004-2015). ................................................................................................................................................................53Table 6: Number of summary judgment motions where at least one responding party filed a cross-motion forsummary judgment, by year of judgment (2004-2015).................................................................................................54Table 7: Outcomes of summary judgment motions where at least one responding party filed a cross-motion forsummary judgment, by year of judgment (2004-2015).................................................................................................55

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List of Figures

Figure 1: Distribution of appeals of unreported summary judgment motions by year, compared to distribution oftotal appeals of summary judgment motions by year. ..................................................................................................35Figure 2: Number of summary judgment motions in Ontario, by year decision was rendered (2004-2015). ...............36Figure 3: Number of summary judgment motions decided in Ontario, by year motion was heard (2004-2015). .........38Figure 4: Number of summary judgment motions decided in Ontario by year and quarter motion was heard(2004-2015). ................................................................................................................................................................39Figure 5: Number of new civil proceedings initiated and total number of civil hearings in the Ontario SuperiorCourt, by calendar year and MAG fiscal year (April 1- March 31), respectively. Source: MAG Court ServicesDivision Annual Reports and data tables (see footnote 161). ...................................................................................... 41Figure 6: Number of summary judgment motions granted or partially granted, by year of judgment (2004-2015). .....43Figure 7: Proportion of summary judgment motions granted, partially granted, and dismissed (periods in 2004-2015)............................................................................................................................................................................45Figure 8: Proportion of summary judgment motions granted, partially granted, and dismissed, by year ofjudgment (2004-2015)..................................................................................................................................................46Figure 9: Number of summary judgment motions involving a self-represented party, by year of judgment (2004-2015)............................................................................................................................................................................49Figure 10: Number of summary judgment motions where at least one responding party filed a cross-motion forsummary judgment, by year of judgment (2004-2015).................................................................................................54

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List of Appendices

Appendix A: Full text of Rule 20 as it existed prior to the 2010 revisions.

Appendix B: Full text of Rule 20 following the amendments effective January 1, 2010.

Appendix C: Guidelines for excluding and coding cases in dataset.

Appendix D: Excel spreadsheet containing complete dataset and worksheets used to make calculations in analysis.

1

Introduction

Canadians have been concerned with the inefficiencies of the justice system for decades. In

2010, numerous amendments were made to the Ontario Rules of Civil Procedure in the latest

significant effort to reform court procedure to improve the efficiency and effectiveness of civil

dispute resolution in the civil justice system. Among these amendments were changes to Rule 20,

the rule respecting summary judgment, which were designed to make it easier for Ontarians to

achieve a final disposition of their dispute without the necessity of a lengthy and expensive trial.

No measure was put in place, however, to see whether the goals of this reform were achieved.

This paper explores the question of whether the changes to Ontario’s summary judgment rule in

2010 actually achieved their intended effects. To do so, it conducts a detailed empirical analysis

of all reported summary judgment decisions between 2004 and 2015 – the six years prior to and

following the implementation of the new Rule 20 on January 1, 2010. By reviewing trends in the

number of summary judgment motions determined over this period and the outcomes of such

motions, we seek to determine whether and how the 2010 reforms to summary judgment

procedure affected litigants’ and judges’ behaviour, and assess if any lessons learned through the

latest slate of reforms can be applied to further improve the efficiency of civil dispute resolution

moving forward.

Part II of this paper provides a background on Rule 20’s previous iterations and their judicial

interpretation, proposals for its reform, and the specific amendments made in 2010. Part III

discusses courts’ interpretation of the amended Rule 20 following its implementation on January

1, 2010, including two key appellate decisions: Combined Air Mechanical Services v Flesch, a

2011 decision of the Ontario Court of Appeal; and Hryniak v Mauldin, a decision of a unanimous

Supreme Court of Canada in January, 2014. Part IV reviews commentary on the summary

judgment amendments, focusing on previous smaller-scale attempts to empirically assess the

effects of the new Rule 20. Part V first discusses this study’s methodology before reporting and

examining the results of the analysis of the number and outcome of summary judgment motions

in Ontario from 2004-2015. Part VI reviews the conclusions drawn from the analysis and

discusses lessons learned from the Rule 20 amendments that may be applied to future civil

justice reform, as well as possible areas for future study to continue to assess and improve

summary judgment procedures in Canada. Part VII concludes.

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Background: Rules, reform proposals, andamendments

2.1 Rule 20: The history of summary judgment in Ontario

Prior to the introduction of the Rules of Civil Procedure1 in 1985, the former Rules of Practice

and Procedure2 provided for the possibility of summary judgment. Rule 58(2) permitted the

court to grant judgment before trial for the plaintiff “where the court is satisfied that the

defendant has not a good defence to the action or has not disclosed such facts as may be deemed

sufficient to entitle him to defend the action”.3 Notably, this rule pertained to motions for

judgment brought by plaintiffs, and was confined to cases asserting particular claims, such as for

a debt or liquidated demand.4

The Court of Appeal made clear in Arnoldson y Serpa v. Confederation Life Assn.5 that the test

for granting judgment pursuant to rule 58(2) was strict. In setting aside an order granting

judgment in favour of the plaintiff, the Court of Appeal held:

We are all of the view that on an application of this nature the power to direct

that judgment be summarily signed should be exercised with great caution and

with the most scrupulous discretion. The plaintiff must make out a case which

is so clear that there is no reason for doubt as to what the judgment of the

Court should be if the matter proceeded to trial.6

Litigants’ ability to obtain summary judgment was thus quite limited prior to 1985. The

introduction of the Rules of Civil Procedure and Rule 20, however, made summary judgment

available to both plaintiffs and defendants, in the context of any action, at any time following the

1 RRO 1990, Reg 194 [Rules].

2 RRO 1980, Reg 540 [Rules of Practice].

3 Rules of Practice, r 58(2).

4 The Honourable Mr. Justice John W. Morden, “An Overview of the Rules of Civil Procedure of Ontario”, (1984)5:3 Adv Q 257 at 273; see also Rules of Practice, supra note 2, r 33 & 58.

5 (1974) 3 OR (2d) 721 (Ont CA), [1974] OJ No 1905 [Arnoldson].

6 Arnoldson, supra note 5 at para 6 [emphasis added]. See also Robert J van Kessel, Dispositions Without Trial,Second Edition, (Markham ON: LexisNexis Canada Inc, 2007) at 156-161 [van Kessel].

3

exchange of pleadings.7 The text of Rule 20 made clear that the new provision was to be

interpreted more broadly; in fact, rule 20.04 provided that the court shall grant summary

judgment where it “is satisfied that there is no genuine issue for trial with respect to a claim or

defence”.8 The full text of Rule 20 as it existed prior to the 2010 revisions is included at

Appendix A.

Rule 20 was initially interpreted in an expansive manner.9 However, the meaning of “no genuine

issue for trial” remained elusive. A few years after the 1985 rule was introduced, courts in

Ontario had generally distilled the standard to two principles:

1. Where there are controverted issues of fact involving the credibility of

witnesses, it could not be said that there are “no genuine issue for trial”;

summary judgment should not be granted. The trial is the only proper forum

for the resolution of disputed facts through the hearing and testing of viva voce

evidence;

2. Where there are no disputed facts in issue, the court must nevertheless be

satisfied that on the evidence there is no basis on which a reasonable trier of

fact, properly instructed, could find in favour of the responding party before

summary judgment should be granted.10

The limits of the motions judge’s role, particularly in assessing credibility, became an important

factor in constraining the interpretation of Rule 20 and the use of summary judgment to resolve

civil disputes. In Masciangelo v Spensieri,11 Justice Doherty observed:

The suitability of a summary procedure where the dispute is fact bound raises

difficult problems. …Where the outcome of a law suit hinges on the

assessment of credibility, a trial in which evidence is called and the competing

7 Rules, supra note 1, r 20.01. See also Kenneth J Kelertas, “The Evolution of Summary Judgment in Ontario”,(1999) 21:3 Adv Q 265 at 268-269 [Kelertas].

8 Rules, supra note 1, r 20.04.

9 See T. Walsh and L. Posloski, “Establishing a Workable Test for Summary Judgment: Are We There Yet?”, in T.L. Archibald and R. S. Echlin, eds., Annual Review of Civil Litigation 2013 at 426, citing, e.g., Vaughan v. WarnerCommunications, Inc. (1986), 56 OR (2d) 242 (HCJ).

10 Alvi v Lal (1990), 13 RPR (2d) 302 at 306-307, [1990] OJ No 739 (Ont HCJ) per Then J [emphasis in original].The evolution of the “no genuine issue for trial” standard is explained in detail in Kelertas, supra note 7, from whichI have drawn for this summary.

11 (1990), 1 CPC (3d) 124, [1990] OJ No 1429 (Ont HCJ).

4

stories are told and challenged before the trier of fact has traditionally been

viewed as the ideal forum. This is so, not only because the trier of fact has the

advantage of hearing and seeing the witnesses, but also because the parties are

given their day in court during which they have the opportunity to present their

entire case, face their judge, and tell their story. The quality of justice is

measured not only by the accuracy of the result reached but by the way that

result is reached. That quality may suffer if litigants are judged unworthy of

belief by someone who has never seen them or heard them, but instead has

examined only written material.12

It is particularly interesting to note Justice Doherty’s emphasis on litigants’ perceptions of the

quality of justice they received (i.e. their ability to have their “day in court”), rather than a

motions judge’s ability to assess credibility effectively on a written record. Notably, he

specifically held that he would not be able to accept the respondent’s sworn evidence were he

trying the case on the record before him.13 Nevertheless, Justice Doherty concluded that one’s

credibility is a genuine issue for trial, holding, “Arguments which involve the central facts of the

case and turn on judgments as to credibility should not be resolved on a Rule 20 motion”.14

Ontario courts appeared to turn towards a less stringent standard for granting summary judgment

with Pizza Pizza Ltd v Gillespie.15 In Pizza Pizza, Justice Henry rejected the notion that the

question on summary judgment was whether the respondent could not possibly succeed at trial;

rather, he held, “the court, in taking a hard look at the merits, must decide whether the case

merits reference to a judge at trial”.16 He emphasized that parties must put their “best foot

forward” on the motion by filing sworn affidavit evidence in support of their position, and that

the motions judge may draw common-sense inferences from the evidence and “look at the

overall credibility” of each party’s position to determine if “the case is so doubtful that it does

not deserve consideration” at trial.17

12 Ibid at 129-130.

13 Ibid.

14 Ibid at 130.

15 (1990), 75 OR (2d) 225 (Gen Div).

16 Ibid at 237.

17 Ibid, at 238.

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In Irving Ungerman Ltd v Galanis, the Court of Appeal helpfully explained the intended role of

summary judgment as follows:

A litigant's “day in court”, in the sense of a trial, may have traditionally been

regarded as the essence of procedural justice and its deprivation the mark of

procedural injustice. There can, however, be proceedings in which, because

they do not involve any genuine issue which requires a trial, the holding of a

trial is unnecessary and, accordingly, represents a failure of procedural

justice. In such proceedings the successful party has been both unnecessarily

delayed in the obtaining of substantive justice and been obliged to incur added

expense. Rule 20 exists as a mechanism for avoiding these failures of

procedural justice.18

Writing for the majority in 1061590 Ontario Ltd v Ontario Jockey Club, Justice Osborne

succinctly described the standard to be applied by a motions judge on a motion for summary

judgment, as it then was, stating:

The motions judge hearing a motion for summary judgment is required to take

a hard look at the evidence in determining whether there is, or is not, a genuine

issue for trial. The onus of establishing that there is no triable issue is on the

moving party, in this case the purchaser. However, a respondent on a motion

for summary judgment must lead trump or risk losing. Generally, if there is an

issue of credibility which is material, a trial will be required.19

Although these decisions appeared to suggest that motions judges had some leeway to evaluate

the evidence put before them to determine if a genuine issue for trial existed on a motion for

summary judgment, two later decisions of the Court of Appeal reined in the standard. In Aguonie

v Galion Solid Waste Material Inc,20 the motions judge had granted summary judgment to a

defendant on the basis that the plaintiff filed her claim after the two-year limitation period had

elapsed, but the Court of Appeal overturned this result. The Court of Appeal held that in granting

summary judgment in the circumstances, the motions judge had “misconstrued the role of a

18 Irving Ungerman Ltd v Galanis (1991), 4 OR (3d) 545, [1991] OJ No 1479 [Ungerman] at para 20 [emphasisadded].

19 1061590 Ontario Ltd v Ontario Jockey Club (1995), 21 OR (3d) 547 (CA) at 557 [citations omitted].

20 (1998), 38 OR (3d) 161 (CA), rev’g (1997), 33 OR (3d) 615 (Gen Div) [Aguonie].

6

motions court judge hearing a motion for summary judgment” and “exceeded his role”.21 Writing

for the Court, Borins J held:

In ruling on a motion for summary judgment, the court will never assess

credibility, weigh the evidence, or find the facts. Instead, the court's role is

narrowly limited to assessing the threshold issue of whether a genuine issue

exists as to material facts requiring a trial. Evaluating credibility, weighing

evidence, and drawing factual inferences are all functions reserved for the trier

of fact.22

In a later decision, Dawson v Rexcraft Storage and Warehouse Inc,23 the Court of Appeal

elaborated on its holding in Aguonie, stating: “…it is necessary that motions judges not lose sight

of their narrow role, not assume the role of a trial judge, and, before granting summary judgment,

be satisfied that it is clear that a trial is unnecessary”.24 Writing for the Court in Dawson, Justice

Borins again emphasized the preferred approach: “…some motions judges have come to regard a

motion for summary judgment as an adequate substitute for a trial. In my view, this is incorrect

and does not reflect the true purpose of Rule 20”.25

2.2 The Osborne Report

Although summary judgment was generally available to civil litigants following the 1985 Rules,

the Ontario Court of Appeal’s interpretation of Rule 20 granted limited scope to motions judges

in determining whether there was “no genuine issue for trial”. As Professor Janet Walker has

explained, “Although this interpretation remained in place for some time, by 2006 it had become

clear that it was not serving the civil justice system well”.26

In June 2006, Michael Bryant, then Ontario’s Attorney General, asked the Honourable Coulter

Osborne, the former Associate Chief Justice of Ontario, to lead the Civil Justice Reform Project

21 Ibid at 168 & 169.

22 Ibid at 173 [emphasis added].

23 (1998), 164 DLR (4th) 257, [1998] O.J. No. 3240 (CA) [Dawson cited to OJ].

24 Ibid at para 20.

25 Ibid at para 18.

26 Janet Walker, “Summary Judgment Has its Day in Court”, (2012) 37 Queen’s LJ 697 at 702 [Walker].

7

(“CJRP”). As part of this mandate, Justice Osborne was asked to “deliver recommendations for

action to make the civil justice system more accessible and affordable for Ontarians”.27 The

CJRP terms of reference included summary judgment on its short list of possible areas of reform,

and emphasized that Justice Osborne’s reform proposals should “provide meaningful results in

enhancing access to justice for Ontarians”.28 Interestingly, the CJRP mandate letter recognized

that “rule and other regulatory reform alone might not adequately respond to problems in the

system”, and suggested that “[w]ays to foster ‘cultural change’ among the bench and bar should

be considered”.29

The CJRP prepared and distributed a consultation paper canvassing ideas for reform and

solicited comments from the bar associations, lawyers, judges, and the public. It also held

consultation meetings throughout the province and assembled advisory committees of members

of the bar and bench with various perspectives to provide advice in assessing reform options.30 In

November, 2007, Justice Osborne submitted the CJRP report (the “Osborne Report”), providing

numerous recommendations for civil justice reform.31

Summary judgment was one of many areas of proposed reform discussed in the Osborne

Report.32 During the consultation process, the CJRP discussed whether to change the “no

genuine issue for trial” test, or broaden the power of a motions judge on a summary judgment

motion, or both.33

27 Honourable Coulter A Osborne, QC, “Civil Justice Reform Project: Summary of Findings andRecommendations”, November 2007, online: Ontario Ministry of the Attorney General,www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp (retrieved October 5, 2015), at Appendix A & B[Osborne Report].

28 Ibid at Appendix A.

29 Ibid.

30 Ibid at 4-6.

31 Ibid at ii.

32 The report also recommended reform to the Small Claims Court and simplified procedure process andjurisdiction; the discovery process; the process for proffering expert evidence; and pre-trial conferences, amongothers.

33 Osborne Report, supra note 27 at 32.

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The Osborne Report highlighted the general agreement amongst the bench and bar that the Court

of Appeal’s view of the scope of motion judges’ authority was too narrow, and that Rule 20 was

not working as intended.34 It further noted anecdotal reports from the bar that few summary

judgment motions were brought at the time. The Report noted that the bar’s report in this regard

was confirmed by statistics from the Ministry of the Attorney General (“MAG”), stating that

“[i]n 2005-06, summary judgment motions were commenced in only 642 of Ontario’s 63,251

Superior Court civil cases (1%)”.35 Unfortunately, the Report provides no context for this

statistic: there is no information as to how the data was gathered; whether the 63,251 civil cases

at issue were all extant cases in the Ontario civil justice system, or those commenced within a

certain time period; whether 642 summary judgment motions referred to those commenced in the

2005-2006 term or during the life of those cases; or how many of the 642 summary judgment

motions commenced were eventually heard and decided by the Court.

The CJRP consultation revealed some debate amongst the bench and bar as to the preferable

threshold for granting summary judgment: some argued the “no genuine issue for trial” test

should be reformed; others suggested that it was not the test itself, but the courts’ interpretation

of it, that limited Rule 20’s effectiveness, and others still said the test ought to remain a difficult

threshold so to ensure meritorious claims and defences are not disposed too early by way of

orders on summary judgment.36

Justice Osborne considered the summary judgment test used in England and Wales, which

provides that judgment may be granted if the claimant or defendant has “no real prospect of

success”.37 He observed that while such a test would theoretically reduce the threshold for

granting summary judgment, the courts in England had effectively limited the impact of the rule

in a manner similar to the Court of Appeal for Ontario.38 Justice Osborne thus concluded that it

34 Ibid at 33.

35 Ibid at fn 24.


37 Ibid at 34, citing the England and Wales Civil Procedure Rules, rule 24.2.

38 Ibid at 34-35.

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was not the “no genuine issue for trial” test that limited the effectiveness of summary judgment,

but the restrictions to motions judges’ powers on a summary judgment motion.39

Accordingly, the Osborne Report recommended that the test under Rule 20 remain the same, but

that a motions judge be expressly permitted to weigh evidence, draw inferences, and evaluate

credibility on a summary judgment motion (i.e. do precisely that which the Court of Appeal had

held a motions judge cannot do).40 Moreover, he proposed that where the court cannot determine

the motion without viva voce evidence on certain issues, the Rules should provide for a “mini-

trial” where witnesses can testify on relevant issues in a summary fashion, without having to

proceed to a full trial.41

The Osborne Report further recommended that the presumption of ordering substantial

indemnity costs against a moving party who is unsuccessful in obtaining summary judgment

ought to be eliminated, due to concerns that it deterred parties from bringing Rule 20 motions.

Acknowledging the need to deter parties from using Rule 20 as a delay tactic, Justice Osborne

suggested that substantial indemnity costs should be awarded by motions judges against parties

who act in bad faith, but ought not be presumptive.42

Finally, Justice Osborne proposed that a mechanism for summary trials (similar to a procedure

that had been successful in British Columbia) should be introduced to provide a further tool for

the final disposition of certain cases without a full trial. He proposed that Ontario import British

Columbia’s rule 18A,43 which allowed a court to grant judgment based on documentary evidence

(including affidavits, transcripts of examinations for discovery, expert opinion, and cross-

examinations thereof) or, if unable to grant judgment on documentary evidence alone, make

various orders to expedite the trial.44 The Osborne Report concluded that a summary trial

39 Ibid at 35.

40 Ibid.

41 Ibid at 36.

42 Ibid at 36-37.

43 Supreme Court Rules, BC Reg 221/90, r 18A. The BC Rules have since been replaced by BC Reg 168/2009,which provides for summary trials in Rule 9-7.


10

procedure would improve proportionality in civil justice, and reduce the cost and delay inherent

in civil dispute resolution.45

2.3 Amendments to the Rules of Civil Procedure in 2010

In early 2008, following the release of the Osborne Report, the Attorney General conducted a

further consultation with judges, lawyers, and the public to discuss the Report’s

recommendations. The recommendations were also considered by the Civil Rules Committee,

which is made up of lawyers, judges, and MAG representatives, and empowered by the Courts of

Justice Act46 to make the rules for civil courts.47 In 2008 and 2009, Ontario enacted regulations

to amend the Rules of Civil Procedure to effect some of the proposed reforms. The reforms were

to come into effect on January 1, 2010.48

The amendments modified dozens of court rules. In addition to the summary judgment reforms

(described below), the amendments:

• Narrowed the scope of discovery;

• Required parties to agree on a written discovery plan prior to exchanging documents;

• Made pre-trial conferences mandatory for all civil actions;

• Increased the monetary limit for simplified procedure actions and for the Small Claims

Court;

• Established various requirements for expert witnesses and the content of expert reports;

• Modified the timelines for service of motion materials; and

• Imposed an overarching principle of proportionality.49

Rule 20 was amended to read as follows:

45 Ibid at 39-40.

46 RSO 1990, c C.43 [CJA].

47 Ontario Ministry of the Attorney General, “What’s New? Changes to the Rules of Civil Procedure”, online:Ontario Ministry of the Attorney General,http://www.attorneygeneral.jus.gov.on.ca/english/courts/civil/changes_to_rules_of_civil_procedure.php (retrievedOctober 5, 2015).

48 Ibid.

49 Ibid. See also O Reg 438/08 and O Reg 394/09.

11

20.04(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial

with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a

summary judgment and the court is satisfied that it is appropriate to grant

summary judgment.

(2.1) In determining under clause (2)(a) whether there is a genuine issue

requiring a trial, the court shall consider the evidence submitted by the parties

and, if the determination is being made by a judge, the judge may exercise any

of the following powers for the purpose, unless it is in the interest of justice for

such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in

subrule (2.1), order that oral evidence be presented by one or more parties,

with or without time limits on its presentation.

…

20.06 The court may fix and order payment of the costs of a motion for

summary judgment by a party on a substantial indemnity basis if,

(a) the party acted unreasonably by making or responding to the motion;

or

(b) the party acted in bad faith for the purpose of delay.50

The full text of Rule 20 following the 2010 amendments is included at Appendix B. The

changes, described below, generally reflected the recommendations in the Osborne Report, with

some exceptions and modifications.

First, the test for granting summary judgment was changed from “no genuine issue for trial” to

“no genuine issue requiring a trial”.51 Interestingly, Justice Osborne had specifically

50 Rules, supra note 1, r 20.04.

51 Ibid [emphasis added].

12

recommended that the “no genuine issue for trial” test not be amended; he was of the view that it

was the limits on motions judges’ powers on summary judgment motions, rather than the test for

granting such motions, that limited the effectiveness of Rule 20.52 The phrase “no genuine issue

requiring a trial” appears to have derived from the Ontario Court of Appeal’s decision in

Ungerman.53

Second, motions judges were granted the power to weigh evidence, evaluate credibility, and

draw reasonable inferences from evidence, as proposed by Justice Osborne. Although his

proposal for a summary trial mechanism was not adopted, Justice Osborne’s suggestion that a

“mini-trial” could be directed to resolve the issues on summary judgment was accepted in part:

pursuant to r. 20.04(2.2), judges can order the presentation of oral evidence on a summary

judgment motion, to determine whether there is a genuine issue requiring a trial. Notably, these

expanded powers were conferred on motions judges, but not masters.

Finally, the amended Rules implemented Justice Osborne’s recommendation respecting costs: on

a failed summary judgment motion, costs will presumptively be determined on a partial

indemnity basis, although substantial indemnity costs may be ordered where a party acts

unreasonably or in bad faith.

The amended summary judgment rules took immediate effect on January 1, 2010; the new

standard and powers applied to all summary judgment motions, regardless of whether the motion

was filed before or after that date.54


53 See text accompanying note 18; see also Combined Air Mechanical Services Inc v Flesch, 2011 ONCA 764 at note3.

54 Onex Corp v American Home Assurance (2009), 100 O.R. (3d) 313.

13

Courts’ interpretation and use of amended Rule 20

3.1 Ontario Superior Court: Key decisions in 2010-2011

In the months following the implementation of the amended Rule 20, motions judges in Ontario

developed divergent approaches in applying the revised test and their new powers.55 In Healey v

Lakeridge Health Corp, Justice Perell held: “Semantically, there is not much difference between

‘no genuine issue for trial’ and ‘no genuine issue requiring a trial’”.56 He acknowledged,

however, that the new powers granted to motions judges by Rule 20.04(2.1) was a “statutory

reversal of the case law”, and that in that context the reframing of the test was intended to make

summary judgment more readily available.57 Ultimately, using his enhanced powers to find facts

permitted Justice Perell to grant the summary judgment motion brought by one of the

defendants.58

In Lawless v Anderson, Justice D.M. Brown highlighted that the “New Rule 20” introduced a

“radical change” by arming motions judges with greater powers to review evidence, “vest[ing] in

a motion judge the powers typically exercised by a trial judge”.59 Justice Brown observed that

motions judges were no longer confined to identifying whether there existed a dispute of material

fact and suggested that, as a practical matter, motions judges will likely be better able to

determine issues of discoverability on summary judgment motions premised on a lapsed

limitation period.60 This is precisely what occurred in Lawless: Justice Brown’s assessment of

the record allowed him to find the necessary facts to conclude that no genuine issue for trial

55 See Walker, supra note 26 at 713. This section has also benefitted from the discussion of cases applying theamended Rules in Carole J Brown & Steven Kennedy, “Changing the Rules of the Game: Rewinding the First TenMonths of the New Rules of Civil Procedure”, (2011), 37 Adv Q 443 [Brown & Kennedy].

56 Healey v Lakeridge Health Corp, 2010 ONSC 725 at para 20 [Healey], aff’d 2011 ONCA 55.

57 Ibid at paras 22-23.


59 Lawless v Anderson, 2010 ONSC 2723 at para 19.

60 Ibid at paras 19 & 22.

14

existed as to when the plaintiff discovered her claim, and he granted summary judgment in

favour of the defendant.61

Justice Pepall highlighted a key change under the new Rule 20 when he held that implicit in

motions judges’ new powers to weigh evidence, evaluate credibility, draw reasonable inferences,

and order oral evidence is the ability to make findings of fact.62

Not all Superior Court judges, however, recognized the significance of the Rule 20 amendments.

In Cuthbert v TD Canada Trust, Justice Karakatsanis (as she then was) held that, despite the new

rules, “it is not the role of the motions judge to make findings of fact for the purpose of deciding

the action on the basis of the evidence presented on a motion for summary judgment”.63 In both

Cuthbert and Hino Motors Canada v Kell, Justice Karakatsanis held that the test for summary

judgment “has not changed”, citing the articulation of the test as “whether there is a genuine

issue of material fact that requires a trial for its resolution” from the Court of Appeal’s decision

in Ungerman in 1991.64

In Optech Inc v Sharma, Justice Brown added to his comments on the amended Rule 20 in

Lawless by suggesting a possible approach to summary judgment motions. He proposed that in

order to assess whether a final disposition could be granted on a summary judgment motion

(including through a “mini-trial” using the power to order viva voce evidence under Rule

20.04(2.2)), motions judges should ask themselves the question “How much more would I need

to decide this case?”.65

It is clear that motions judges in Ontario had not agreed on the appropriate interpretive approach

of the new Rule 20 in the first two years following the amendments. A unified standard would

61 Ibid at para 63.

62 Canadian Premier Life Insurance Company v Sears Canada Inc, 2010 ONSC 3834 at para 68.

63 Cuthbert v TD Canada Trust, 2010 ONSC 830 at para 11 [Cuthbert].

64 Hino Motors Canada v Kell, 2010 ONSC 1329 at para 7 [Hino Motors] & Cuthbert, supra note 63 at para 11,citing Ungerman, supra note 18.

65 Optech Inc v Sharma, 2011 ONSC 680 at paras 42-44.

15

not appear until the Court of Appeal announced its “fresh approach to the interpretation and

application of the amended Rule 20” in Combined Air Mechanical Services Inc v Flesch.66

3.2 Ontario Court of Appeal: Combined Air and the “fullappreciation” test

In Combined Air Mechanical Services v Flesch (“Combined Air”), the Court of Appeal observed

that since the amendments to Rule 20, “it has become a matter of some controversy and

uncertainty as to whether it is appropriate for a motion judge to use the new powers conferred by

the amended Rule 20 to decide an action on the basis of the evidence presented on a motion for

summary judgment”.67 To address this, the Court convened a five-judge panel to consider

appeals of five different summary judgment motions (both granting and denying summary

judgment) decided under the amended Rule 20,68 with the express purpose of providing some

clarification and guidance to the bench and bar.69 In addition to hearing from counsel for the

parties, the Court appointed five amicus curae representing MAG, the Ontario Bar Association,

and other stakeholders to provide submissions on how the amended rule ought to be interpreted

and applied.70

In unanimous reasons “by the Court”, the Court of Appeal held that the amended Rule 20

permits a motions judge to grant summary judgment to dispose of an action “where he or she is

satisfied that by exercising the powers that are now available on a motion for summary

judgment, there is no factual or legal issue raised by the parties that requires a trial for its fair and

just resolution”.71 The Court accepted that the new rule made clear that the restrictions formerly

imposed on motions judges, articulated by the Court of Appeal in Aguonie and Dawson, were no

66 2011 ONCA 764 at para 35 [Combined Air].

67 Combined Air, supra note 66 at para 5.

68 Appeals from Combined Air v Flesch, 2010 ONSC 1729 (per Belobaba J); Bruno Appliance v Cassels Brock &Blackwell LLP, 2010 ONSC 5490 (per Grace J) (addressing two parties’ separate motions); 394 Lakeshore OakvilleHoldings Inc v Misek, 2010 ONSC 600 (per Perell J); and Parker v Casalese, 2010 ONSC 5636 (per Kruzick,Swinton, and Harvison Young JJ for the Ontario Divisional Court).

69 Combined Air, supra note 66 at para 6.

70 Ibid at para 7.

71 Ibid at para 37.

16

longer applicable, and that the amendments were “meant to introduce significant changes in the

manner in which summary judgment motions are to be decided”.72

The Court emphasized, however, that the new rule was intended to eliminate unnecessary trials –

not to eliminate all trials.73 Accordingly, it listed three types of cases that will generally be

amenable to summary judgment:

(1) Where a claim or defence is shown to be without merit or to “have no chance of

success”;74

(2) Where the parties agree it is appropriate to determine the action by way of a motion for

summary judgment (although, even in such a case, the judge will retain the discretion to

refuse summary judgment where the test is not met, notwithstanding the parties’

agreement);75 and

(3) Where the trial process is not required in the “interest of justice”.76

In the Court of Appeal’s view, the new test for Rule 20 expanded the types of cases amenable to

summary judgment from the first two categories to also include the third. Discussing the new

wording of the test (from “no genuine issue for trial” to “no genuine issue requiring a trial”), the

Court held:

This change in language is more than mere semantics. The prior wording

served mainly to winnow out plainly unmeritorious litigation. The amended

wording, coupled with the enhanced powers under rule 20.04(2.1) and (2.2), no

permit the motion judge to dispose of cases on the merits where the trial

process is not required in the “interest of justice”.77

72 Ibid at para 36.

73 Ibid at para 38.

74 Ibid at para 42, citing Canada (Attorney General) v Lameman, 2008 SCC 14 at para 10.

75 Ibid at para 41.

76 Ibid at para 44.

77 Ibid at para 44.

17

The Court proceeded, however, to discuss the aspects of the trial process that render a trial

necessary for the fair and just resolution of many cases. It highlighted a trial judge’s “privileged

position”, participation in the trial dynamic, and “total familiarity with the evidence”,78 noting

that a trial judge “sees witnesses testify, follows the trial narrative, asks questions when in doubt

as to the substance of the evidence, monitors the cut and thrust of the adversaries, and hears the

evidence in the words of the witnesses”.79 The Court concluded that a trial judge’s participatory

role “provides a greater assurance of fairness in the process for resolving a dispute”.80

With this in mind, the Court of Appeal held that a motion judge must ask the following question

on a motion for summary judgment: “can the full appreciation of the evidence and issues that is

required to make dispositive findings be achieved by way of summary judgment, or can this full

appreciation only be achieved by way of a trial?”81 The Court further held that in cases that call

for multiple findings of fact on the basis of evidence emanating from a number of witnesses and

a voluminous record, “a summary judgment motion cannot serve as an adequate substitute for

the trial process”82 – in such cases, the motions judge “simply cannot achieve the full

appreciation of the evidence an issues that is required”, and the interests of justice will require a

trial.83

The Court emphasized that achieving familiarity with the total body of evidence in the motion

record is not the same as “fully appreciating” the evidence. A motions judge must consider

“whether he or she can accurately weigh and draw inferences from the evidence without the

benefit of the trial narrative, without the ability to hear the witnesses speak in their own words

and without the assistance of counsel as the judge examines the record in chambers”.84

78 Ibid at para 46, citing R.D. Gibbens, "Appellate Review of Findings of Fact" (1992), 13 Adv Q 445, at 446.

79 Ibid at para 47.

80 Ibid.

81 Ibid at para 50 [emphasis added].


83 Ibid.


18

The Court of Appeal suggested that the full appreciation test might be met “in document-driven

cases with limited testimonial evidence”, “in cases with limited contentious factual issues”, and

“in cases where the record can be supplemented to the requisite degree at the motion judge’s

direction by hearing oral evidence on discrete issues”.85 However, the Court carefully

highlighted the limits on motions judges’ discretion to order oral evidence under rule 20.04(2.2),

noting that, despite the convenient short form of “mini trial” used for this subrule, summary

judgment motions are not a form of summary trial. Rather, oral evidence may be ordered on

discrete issues, to assist the motions judge in making the determination of whether a trial is

required.86

In summarizing the approach to be applied on summary judgment, the Court of Appeal held that

before using the new powers to weigh evidence, evaluate credibility, and draw inferences, a

motions judge must apply the full appreciation test and be satisfied that the interests of justice do

not require that those powers be exercised only a trial.87

In applying the approach to the appeals before it, the Court listed various “hallmarks” of the

types of action which are inappropriate for summary judgment and require a trial:

- A voluminous motion record;

- Evidence from many witnesses;

- Different theories of liability advanced against different defendants;

- Numerous findings of fact are required;

- Credibility determinations lie at the heart of the dispute;

- Conflicting evidence on key issues from major witnesses; and

- An absence of documentary evidence against which to assess witnesses’ credibility.88

It is clear that the Court of Appeal carefully considered differing views about the appropriate

interpretation of the new Rule 20, particularly by rendering its decision on five different matters

85 Ibid at para 52.


87 Ibid at para 75.

88 Ibid at para 148.

19

and hearing further submissions from advocates from other interested parties. In the result,

Combined Air created a unified standard to be applied across Ontario on motions for summary

judgment. The Court’s reasons, however, emphasized the advantages of resolving disputes at

trial rather than on a summary judgment motion, and arguably sought to circumscribe motions

judges’ powers89 – just as was done by the Court of Appeal in Aguonie and Dawson under the

former Rule 20.

3.3 Supreme Court of Canada: Hryniak and the “culture shift”

Robert Hryniak, one of the parties in the Combined Air appeals, appealed the Court of Appeal’s

determination that the motions judge in his case had not erred in granting summary judgment

against him. His appeal was heard by the Supreme Court of Canada on March 23, 2013,90

alongside a companion appeal brought by Bruno Appliance and Furniture (another party in the

Combined Air appeals).91 Both cases related to allegations of civil fraud against Hryniak. In an

interesting turn of events, Justice Karakatsanis – who had issued two decisions arguably

minimizing the impact of the Rule 20 amendments when she sat on the Ontario Superior Court92

– authored the Supreme Court’s unanimous decision in Hryniak.

The Court began its reasons by acknowledging that many Canadians simply cannot afford to sue

when they are wronged, or defend themselves when they are sued, because trials have become

increasingly expensive and protracted.93 Such circumstances threaten the rule of law and hinder

the development of the common law, and have resulted in increased recognition that a culture

shift is required in order for Canadians to have timely and affordable access to the civil justice

system.94 This culture shift, the Court held, requires:

89 See, e.g., “The discretion to order oral evidence pursuant to rule 20.04(2.2) is circumscribed and cannot be used toconvert a summary judgment motion into a trial… The discretion to direct the calling of oral evidence on the motionamounts to no more than another tool to better enable the motion judge to determine whether it is safe to proceedwith a summary disposition rather than requiring a trial.” Ibid at para 60.

90 Hryniak v Mauldin, 2014 SCC 7 [Hryniak].

91 Bruno Appliance and Furniture, Inc v Hryniak, 2014 SCC 8 [Bruno].

92 See Cuthbert, supra note 63, and Hino Motors, supra note 64, and the text accompanying notes 63 & 64.

93 Hryniak, supra note 90 at para 1.

94 Ibid at para 2.

20

…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.95

Significantly, and in contrast to the views of the Court of Appeal as expressed in Combined Air,

the Supreme Court held that we “must recognize that a process can be fair and just, without the

expense and delay of a trial, and that alternative models of adjudication are no less legitimate

than the conventional trial”.96

The Supreme Court overruled the approach provided in Combined Air, holding that “the Ontario

Court of Appeal placed too high a premium on the “full appreciation” of evidence that can be

gained at a conventional trial, given that such a trial is not a realistic alternative for most

litigants”.97 The Court held that while the goal remains to maintain “a fair and just process”, such

a process is illusory unless it is also accessible, timely, and affordable – and the cost and delay of

the traditional trial process effectively denies many ordinary Canadians the opportunity to

adjudicate their disputes. As such, “the best forum for resolving a dispute is not always that with

the most painstaking procedure”.98

The Court considered the history of summary judgment in Ontario, highlighting in particular that

the Osborne Report had concluded that if the summary judgment rule was to work as intended,

previous appellate jurisprudence narrowing the scope and utility of the rule had to be reversed.99

Reviewing the 2010 amendments, the Supreme Court held that the new Rule 20 “demonstrates

that a trial is not the default procedure”.100 The Court reversed the onus the Court of Appeal held

must be applied in Combined Air; it held that the new fact-finding powers granted to motions

judges are presumptively available, and ought to be exercised unless the interest of justice

95 Ibid [emphasis added].

96 Ibid at para 27.

97 Ibid at para 4.

98 Ibid at paras 24 & 28.

99 Ibid at para 39.


21

requires them to be exercised only at trial. The Supreme Court concluded: “…the amendments

are designed to transform Rule 20 from a means to weed out unmeritorious claims to a

significant alternative model of adjudication”.101

Rather than list relevant factors and categories of cases, as the Court of Appeal had, the Supreme

Court preferred to articulate general principles for determining whether there is no genuine issue

for trial, holding:

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.102

Although still providing little in the way of concrete guidance, Justice Karakatsanis elaborated

on this general rule as follows:

When a summary judgment motion allows the judge to find the necessary facts

and resolve the dispute, proceeding to trial would generally not be

proportionate, timely or cost effective. Similarly, a process that does not give

a judge confidence in her conclusions can never be the proportionate way to

resolve a dispute. It bears reiterating that the standard for fairness is not

whether the procedure is as exhaustive as a trial, but whether it gives the

judge confidence that she can find the necessary facts and apply the relevant

legal principles so as to resolve the dispute.103

The Court emphasized that a documentary record, particularly when supplemented with motions

judges’ new fact-finding tools, will often be enough to resolve a dispute fairly and justly, calling

the powers granted by Rules 20.04(2.1) and (2.2) “an equally valid, if less extensive, manner of

fact finding”.104





22

The Supreme Court proceeded in Hryniak to provide a “roadmap” for a motion for summary

judgment. First, a motions judge should assess whether there is a genuine issue requiring a trial

without using the new fact-finding powers, asking herself whether the summary judgment

process is a timely, affordable, and proportionate procedure, and provides sufficient evidence to

fairly and justly resolve the dispute. If there appears to be a genuine issue requiring a trial at that

juncture, the motions judge should then “determine if the need for a trial can be avoided by using

the new powers” to weigh evidence, evaluate credibility, draw inferences, and order oral

evidence. She may use those powers so long as their use is not against the interest of justice –

and their use will not be against the interest of justice if they lead to a fair and just result that

serves the goals of timeliness, affordability, and proportionality.105

The Supreme Court in Hryniak also underscored a few measures for maximizing the efficiency

of summary judgment motions, such as motions for directions to manage timelines and the cost

of motions; trial management orders for failed or partially successful summary judgment motions

(including under Rule 20.05); and the continuing involvement of the motions judge in the case

(“in the absence of compelling reasons to the contrary, [the motion judge] should also seize

herself of the matter as the trial judge”).106

Ultimately, with its reasons in Hryniak, the Supreme Court of Canada sought to push the bar and

bench away from a presumption that cases should be resolved at trial, in favour of summary

judgment and other more expeditious, cost-effective, and proportionate means of dispute

resolution. Although the Court did not provide concrete guidance for determining what

constitutes a fair and just result, its message was clear: the culture of civil litigation needed to

change in order to promote timely and affordable access to the civil justice system, and summary

judgment motions form an important part of this culture shift.



23

Literature review: Commentary on amendments andthe Hryniak “culture shift”

In the wake of the 2010 amendments to the Rules, the Ontario Court of Appeal’s decision in

Combined Air, and the Supreme Court of Canada’s decision in Hryniak, much has been written

about the impact of the new Rule 20. Most of this commentary has been qualitative, reviewing

the key appellate decisions and commenting on their application in the lower courts.107 A few

practitioners, however, have embarked on quantitative analyses of summary judgment since the

2010 amendments. This section will first review some of the qualitative commentary respecting

the changes to Ontario’s summary judgment regime, then proceed to review the handful of

empirical studies conducted by practitioners, to provide further context for the analysis

conducted and discussed in this paper.

Steven Kennedy and Carole J Brown (now a judge of the Ontario Superior Court) published their

paper “Changing the Rules of the Game: Rewinding the First Ten Months of the New Rules of

Civil Procedure” less than one year into the new regime.108 They evaluated the 2010

jurisprudence pursuant to Rule 20, and concluded that, despite some divergence in judicial

interpretation, the judiciary and litigants had embraced the new rule.109 Although their article

focused on qualitative analysis (and its attention was spread across all the 2010 amendments, not

solely those pertaining to summary judgment), the authors predicted there was likely to be a

“substantial increase in the use of Rule 20 motions in the future”, citing the number of summary

judgment motions heard and pending by the end of 2010.110 Brown & Kennedy concluded,

107 In addition to the papers discussed herein, see, e.g.: Adrian C Lang & Erica Tait, “The new ‘full appreciation’test for summary judgment: The judicial ‘gut check’”, (2012) 30:4 Adv J 6; Neil Finkelstein et al, “A New Paradigmfor Summary Judgment: Hryniak v Mauldin”, (2014), 42 Adv Q 489; Jonathan Lisus, “Hryniak: Requiem for thevanishing trial, or brave new world?”, (2014) 33:1 Adv J 6; Shantona Chaudhury, “Hryniak v. Mauldin: TheSupreme Court issues a clarion call for civil justice reform”, (2014) 33:3 Adv J 8; Edward Bergeron and KristinMuszynski, “Hryniak: The Road Less Travelled Gets Fresh Asphalt” in 1000 Islands Legal Conference 2014(Kingston, Ont: Frontenac Law Association, 2014); and Jillian Evans, “Hryniak’s “Culture Shift”: One Year Later”,presented at the Ontario Trial Lawyers’ Association National Medical Malpractice Conference, Nassau, Bahamas,February 2015, online: Torkin Manes LLP, http://www.torkinmanes.com/docs/default-source/publications/articles/final-otla.

108 Brown & Kennedy, supra note 55.

109 Ibid at 449.

110 Ibid. The authors unfortunately do not elaborate on any quantitative basis for this prediction. They offer that 40cases had considered and applied the new Rule 20 as of the date the paper was written (this date is unknown, but itwas at least November 2010 in order to cover “the first ten months of the new Rules” as indicated by the title, and

24

however, that much remained to be seen before the full impact of the new Rule 20 could be

assessed.111

In her article “Summary Judgment Has its Day In Court”,112 Professor Janet Walker observed

that as divergent approaches to interpreting the new Rule 20 had emerged in the wake of the

amendments, Combined Air provided “welcome guidance” (this paper was published prior to the

hearing and decision in Hryniak).113 Professor Walker argued, however, that the approach to

summary judgment required by the Court of Appeal asserted a high standard for granting

summary judgment, and may restrict summary judgment motions to remaining essentially a

paper hearing; she noted that while motions judges had been authorized to use new powers to

assess the evidence, they were expected to do so “in the shadow of a traditional concern that the

interest of justice may dictate that such powers be exercised only at trial”, making their task quite

complex.114

Professor Walker contrasted the Combined Air approach with the developments in civil dispute

resolution in British Columbia. After adopting a summary trial process (which was proposed in

the Osborne Report but not adopted in Ontario in the 2010 amendments), B.C. achieved gains in

efficiency and came to recognize that “perfect justice is an elusive goal which even a

conventional trial cannot always meet”.115 Professor Walker lamented Ontario’s conservative

approach, arguing that the idealization of the continuous oral trial comes at the expense of

the article was published in January 2011) – but do not state their source in this regard (see ibid at 444). They alsodo not state the number of pending summary judgment motions to which they refer. The authors cite the statisticfrom the Osborne Report that parties brought summary judgment motions in only 1% of Superior Court civil casesin 2005-2006 as support for their prediction that the number of summary judgment motions will substantiallyincrease as a result of the amendments. Putting aside for a moment my questions about this statistic (see the textaccompanying note 35), the Osborne Report actually stated that Rule 20 motions were commenced in “642 ofOntario’s 63,251 Superior Court civil cases (1%)” in 2005-2006 – a number multitudes greater than the 40 cited bythe authors.

111 Ibid at 450.

112 Janet Walker, “Summary Judgment Has its Day in Court”, (2012) 37 Queen’s LJ 697 [Walker].

113 Ibid at 713.

114 Ibid at 726-727.

115 Ibid at 726-727.

25

efficiency.116 Given the emphasis placed on the important role of the trial narrative in Combined

Air, Professor Walker worried that the new Rule 20 “might not result in the resolution of

significantly more cases before trial than were resolved under the previous rule”.117

Toronto litigators Peter Wells and Adrienne Boudreau published two important papers respecting

summary of judgment in the Advocates’ Quarterly in 2012 and 2013.118 Their first paper was a

case comment following Combined Air, in which the authors argued that previous changes to the

Rules attempting to resolve actions prior to trial had suffered from a pattern of “interpretive

erosion”, by which initial enthusiasm for new procedures gave way to increasingly narrow

interpretations of the rules in question, resulting in infrequent use.119 They noted in particular

that early applications of the then-new Rule 20 in 1985 and 1986 saw judges taking a “hard look

at the merits of the action” to determine if it could be disposed of on summary judgment,120 but

this initial enthusiasm waned as courts applying the rule placed restrictions on their own ability

to scrutinize and weigh evidence, expressing a reluctance to deprive a party of its day in court.121

As a result of the strict limitations placed on motions judges, the pre-2010 Rule 20 did not

achieve its initial objective to make summary judgment more widely available.122 The authors

were optimistic, however, that this problem might be avoided following Combined Air, as the

new Rule 20 expressly granted certain fact-finding powers to motions judges, leaving less room

for “interpretive erosion”.123

116 Ibid at 726-728.

117 Ibid at 726-727.

118 They also published a third paper providing a case comment on the Hryniak decision, which is not as relevant forthe purposes of this review: Peter EJ Wells & Adrienne Boudreau, “Accessible, Proportionate, Timely andAffordable – The Supreme Court of Canada’s Challenge to the Bench and Bar in Hryniak v Mauldin”, (2014) 42Adv Q 456.

119 Peter EJ Wells, Adrienne Boudreau & Annik Forristal, “A New Departure and a Fresh Approach: The OntarioCourt of Appeal Decision in Combined Air”, (2012) 39 Adv Q 477. [Wells & Boudreau 2012]

120 Ibid at 482-483, citing Vaughan v Warner Commernications, Inc. (1986), 56 OR (2d) 242 (HCJ) & Greenbaum v619908 Ontario Ltd (1986), 11 CPC (2d) 26 (Ont HCJ).

121 Ibid at 483, citing Mensah v Robinson (1989), 14 ACWS (3d) 53 (Ont HCJ) & Aguonie, supra note 20.

122 Ibid at 488.

123 Ibid at 507.

26

In their second paper, Wells & Boudreau conducted a quantitative analysis of summary judgment

motions to test whether the 2010 amendments to Rule 20 had improved the availability and

scope of summary judgment.124 They concluded that it did not: by comparing summary judgment

decisions in 2012 (following Combined Air) to those in 2009, they found that the new rule had

failed “to lead to any measurable increase in the rate of summary judgment motions”.125

Specifically, the authors determined that while there was a statistically significant increase in the

number of summary judgment motions in 2012 as compared to 2009, there was no significant

difference in the likelihood a summary judgment motion would be granted, partially granted, or

denied between 2009 and 2012.126

Although Wells & Boudreau obtained their data in a manner different from this study (and

accordingly our quantitative findings are not identical), these two overarching conclusions hold

when comparing the 2009 and 2012 data from this study. Wells & Boudreau, however, went on

to conclude that the 2010 amendments had an “insignificant impact”, stating: “it is shocking to

discover that a rule change that was expressly designed to make summary judgment more

available as a means of finally determining litigation has not made any measurable difference in

the anticipated outcome of such a motion”.127 I would not have gone so far.

First, their data looks at two years in isolation; it is difficult to confidently draw such a sweeping

conclusion without viewing any trends from a continuous, longer term. In any event, I question

whether the impact of the new Rule 20 was “insignificant” when there was a marked increase in

the number of summary judgment motions decided after the amendments. Even if the rate of

granting summary judgment motions remained the same, the increased number of motions

decided resulted in an increase in the number (and, assuming a steady overall caseload in that

period, proportion) of civil cases in Ontario resolved by summary judgment prior to trial.128

124 Peter EJ Wells & Adrienne Boudreau, “It Was Déjà Vu All Over Again”, (2013) 42 Adv Q 86 [Wells &Boudreau 2013].

125 Ibid at 87 & 92.

126 Ibid at 100-101.

127 Ibid at 101.

128 This proposition will be discussed in greater detail when analysing the data collected for this study in Sections5.4 & 5.5, below.

27

Importantly, Wells & Boudreau’s data observes the year immediately following Combined Air,

which preferred a fairly conservative approach, before the Supreme Court weighed in with

Hryniak, which promoted a culture shift away from requiring a trial. Two other Toronto

litigators, Matthew Karabus and Ted Tjaden, effectively picked up where Wells & Boudreau left

off with their paper, “The Impact of Hryniak v Maudlin on Summary Judgments in Canada One

Year Later”.129 Karabus & Tjaden reviewed decisions from all across Canada, finding that 460

summary judgment motions and appeals were decided in the year following the Hryniak

decision, and nearly 75% were granted or upheld.130 Comparing their results to those of Wells &

Boudreau, the authors concluded that the “culture shift toward summary judgment being more

broadly utilized by courts appears to be underway”.131

A study similar to Karabus & Tjaden’s was performed by two more practitioners, Stephen G

Ross & Nathaniel Dillon-Smith, for a legal conference in late 2015.132 Ross & Dillon-Smith

compared decisions in 2014 following Hryniak to decisions in the first nine months of 2015, and

similarly concluded that more summary judgment motions were being heard in Ontario, and that

the proportion of summary judgment motions granted had increased.133 The authors conclude

that it took some time for Hryniak to sink in, but that a “culture shift” has now begun.134

129 Matthew Karabus & Ted Tjaden, “The Impact of Hryniak v Maudlin on Summary Judgments in Canada OneYear Later”, (2015) 44 Adv Q 85 [Karabus & Tjaden].

130 Ibid at 85. The authors’ methodology again differed from this study – they noted up Hryniak on CanLII,Quicklaw, and Westlaw to find all cases citing the decision. It appears, however, that this number refers to casessimply citing Hryniak (regardless of the purpose, including cases referring to its general principles without actuallydeciding a summary judgment motion); with respect to Ontario, the authors found 299 cases citing Hryniak but just217 decisions on summary judgment motions or appeals. Using the methodology described below, the study hereinlocated 279 summary judgment decisions in Ontario during the same period.

131 Ibid at 90.

132 Stephen G Ross & Nathaniel Dillon-Smith, “A Real ‘Culture Shift’ Post-Hryniak?”, presented at the OsgoodeLaw School Professional Development 11th Annual Update on Personal Injury Law & Practice, October 8, 2015[Ross & Dillon-Smith]. Like Karabus & Tjaden, Ross & Dillon-Smith collected their data by reviewing decisionsciting Hryniak, acknowledging that their methodology had the limitation of excluding summary judgment decisionsthat did not cite Hryniak.

133 Ibid at 8.

134 Ibid at 9.

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Yet another post-Hryniak analysis was performed in March 2016 by Loom Analytics, a Toronto-

based company providing statistical services for the legal industry.135 In contrast to the two

aforementioned post-Hryniak studies, Loom Analytics concluded that the proportion of summary

judgment motions granted has not increased following the Supreme Court’s decision: Loom

found that the rate of summary judgment motions granted or partially granted in 2015 was 55.6%

– very close to the rate of motions granted Wells & Boudreau reported for 2009 (55.2%) and

2012 (56.1%). Loom concluded from this pattern that “the hoped-for culture shift has not come

to pass”.136 Notably, however, the Loom report is entirely silent on its methodology (although

elsewhere on the company’s website it is noted that their database is limited to decisions

published on CanLII, and that a “small percentage” of complex proceedings are not included).137

Like Wells & Boudreau’s 2013 study, the Karabus & Tjaden, Ross & Dillon-Smith, and Loom

Analytics studies unfortunately do not provide sufficient context to assess long-term trends.

Karabus & Tjaden’s data looks only at one year of decisions (following Hryniak), then compares

against the analysis of two other years of data by Wells & Boudreau, who had used a different

source and methodology to arrive at their results. Ross & Dillon-Smith compare two consecutive

time periods, both following Hryniak – one of over eleven months of 2014, and another of about

nine months of 2015 – then further compare their results to an unpublished study of cases in the

year before and after Hryniak, using a different methodology.138 Loom Analytics’ study –

admittedly simply a blog post – provides no context as to how its data was collected and

categorized, and also compares the time period reviewed to Wells & Boudreau’s more thorough

analysis.

135 Mona Datt & LJ Kadey, “Summary Judgments Two Years After Hryniak: Has Anything Changed?”, LoomAnalytics Blog, March 4, 2016 (retrieved March 11, 2016), online: http://blog.loomanalytics.com/summary-judgments-two-years-after-hryniak-has-anything-changed/.

136 Ibid.

137 See “What is the scope of Loom Analytics’ decision coverage?” in Loom Analytics FAQ, retrieved May 26, 2016,online: http://www.loomanalytics.com/faq/.

138 Ibid at 8-9; see also Drew Hasselback, Where’s that flood of summary judgment motions, Financial Post,February 11, 2015 (retrieved May 26, 2016), online: http://business.financialpost.com/legal-post/drew-hasselback-wheres-that-flood-of-summary-judgment-motions. The comparative study, conducted by litigator Gord McGuire,reviewed summary judgment decisions in the twelve months before and after Hryniak (as obtained throughQuicklaw searches). McGuire found that in those two periods the proportion of summary judgment decisionsgranted, partially granted, and denied had hardly changed, and concluded that “all the hullabaloo about Hryniakmight have been overblown”.

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While these articles present a worthwhile contribution to Canadian legal literature in promoting

the use of empirical review to assess the effects of changes in the law, none provides a long-term

view – obtained through a consistent methodology – of how litigants and the courts have

responded to the rule change. This paper seeks to do just that.

Empirical review of summary judgment decisions inOntario (2004-2015)

5.1 Goals of study

In founding the Civil Justice Reform Project, the Ministry of the Attorney General recognized

that Ontario needed “to make the civil justice system more accessible and affordable for

Ontarians”.139 Justice Osborne was tasked with making recommendations about reforms to the

Rules of Civil Procedure that would “provide meaningful results in enhancing access to justice

for Ontarians”.140 The Osborne Report responded to the concerns that summary judgment

motions were brought infrequently and Rule 20 was not working as intended.141 The 2010

amendments to the Rules (stemming from the Osborne Report recommendations) ostensibly

sought to address these issues.

The Supreme Court in Hryniak lamented Canadians’ inability to bring or respond to lawsuits due

to the time and expense required by trials. Accordingly, it championed a “culture shift… moving

emphasis away from the conventional trial” in favour of summary judgment, in order to allow

Canadians to have timely and affordable access to the civil justice system.142

This paper seeks to empirically evaluate whether the 2010 amendments to Rule 20 and their

subsequent judicial interpretation did, in fact, “provide meaningful results in enhancing access to

139 Osborne Report, supra note 27 at Appendix A (Terms of Reference) & Appendix B (Consultation Letter).

140 Ibid at Appendix A: Terms of Reference.

141 Ibid at 33.

142 Hryniak, supra note 90 at paras 1-2.

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justice for Ontarians”143 and “promote timely and affordable access to the civil justice

system”.144 Accordingly, we will review whether, following the summary judgment reforms:

• the number of summary judgment motions decided in Ontario increased;

• the number of summary judgment motions granted increased; and

• the proportion of summary judgment motions granted increased.

We will review how the number and outcomes of summary judgment motions changed before

and after the 2010 amendments, analyzing data from 2004-2015, observing in particular whether

and how patterns changed following three key dates:

• January 1, 2010: Amendments to Rule 20 came into effect

• December 5, 2011: Ontario Court of Appeal released its decision in Combined Air

• January 23, 2014: Supreme Court of Canada released its decision in Hryniak

By assembling and analyzing a single data set using a consistent methodology, I hope to

meaningfully examine long-term trends as to how Rule 20 has been interpreted and applied and

observe how litigants’ and judges’ behaviour was affected by the amendments to Rule 20 and its

subsequent interpretation by appellate courts.

Ultimately, this paper seeks to answer the question: Did summary judgment reform achieve its

desired effects?

5.2 Methodology

5.2.1 Source of data (judgments)

I sought to collect all reported145 decisions rendered on motions for summary judgment pursuant

to Rule 20 of the Ontario Rules of Civil Procedure from 2004-2015 (the six years prior to and six

years following the relevant amendments).

143 Osborne Report, supra note 27 at Appendix A: Terms of Reference.

144 Hryniak, supra note 90 at para 2.

145 “Reported” refers to decisions available through the three major Canadian publishers of court decisions: CanLII,Westlaw (Carswell), and Quicklaw (LexisNexis) – not simply cases published in law reports.

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To do this, I searched each of Quicklaw, Westlaw, and CanLII for cases containing the terms

“summary judgment” OR “summary judgement” and “motion”, limiting the search to courts in

Ontario and the time period from 2004-01-01 to 2015-12-31. I downloaded all 6517 cases that

met these parameters from Quicklaw146 on January 3, 2016; these formed my primary source of

data.

5.2.2 Method of sorting and coding judgments

The data was first reviewed by a software program developed for the purpose of this research147

to gather various easily-identifiable data points (i.e. those which appear in each judgment in the

same format and location), then input this data into an Excel spreadsheet. The variables captured

through this process were:

• Case name

• Court file number/docket

• Citation(s)

• Date summary judgment motion was heard148

• Date of summary judgment decision

• Name of judge(s) or master presiding over summary judgment motion

• Whether decision-maker was a judge or a master

• Court (Ontario Superior Court, Ontario Superior Court – Commercial List, Divisional

Court, or Court of Appeal)

A copy of the instructions given to the software developer to identify the relevant data points is

included at Appendix C.

146 Quicklaw was used as my source because it gathered the most results from this search. The Quicklaw searchresulted in 6517 cases (after Quicklaw excluded duplicates, i.e. cases reported in multiple sources; I used theQuicklaw-native Ontario Judgment version when multiple versions existed). An identical search in Westlawgarnered 6322 results, and CanLII had 6319 results.

147 Software was developed by Jonathan Morris-Pocock, and is on file with the author.

148 Where the motion was heard over multiple dates, only the first date is identified – I made this update to each casemanually on my review of each case. If the decision only identified one date, it was deemed to be both the date themotion was heard and the date of decision.

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Notably, the search terms used to collect the summary judgment decisions (as described above)

were over-inclusive; they captured numerous cases that were not summary judgment motions,

including:

• Motions for costs referring to an earlier summary judgment motion;

• Trial decisions referring to an earlier summary judgment motion;

• Motions to strike under Rule 21;

• Procedural motions referring to an earlier or subsequent summary judgment motion;

• Motions for security for costs;

• Motions referring to the general concepts of proportionality and access to justice as

articulated in the Osborne Report, Combined Air, and Hryniak

• Motions for leave to appeal a summary judgment decision (where no substantive

determination on the merits was made);

• Motions similar to summary judgment in proceedings under the Family Law Rules;

• Motions similar to summary judgment pursuant to the Construction Lien Act.149

I reviewed each of the 6517 decisions collected to identify all decisions that were not decisions

on motions for summary judgment pursuant to Rule 20, or appeals thereof. All such decisions

were coded to be excluded from the dataset that was to be analyzed. A copy of the coding

guidelines for excluding cases from the dataset is included at Appendix C. Once all such

decisions were excluded, 2960 decisions pursuant to Rule 20 motions remained for analysis.

In my review, I coded each of the 2960 summary judgment decisions for the following variables:

• Moving party150

149 The search also captured cases decided under rule 76.07 (summary judgment in simplified procedure actions),before it was revoked in March 2008. These were included in the dataset for the purpose of consistency, as for themajority of the study period (upon revocation of rule 76.07) summary judgments under simplified procedure ruleswere governed by Rule 20. It should be noted, however, that prior to March 2008, rule 76.07(9) provided for adifferent test than Rule 20: “The presiding judge shall grant judgment on the motion unless, (a) he or she is unable todecide the issues in the action without cross-examination; or (b) it would be otherwise unjust to decide the issues onthe motion.”

150 Coded as follows: (1) Plaintiff(s); (2) Defendant(s); (3) Plaintiff(s) with defendant cross-motion; (4) Defendant(s)with plaintiff cross-motion. Where the moving party was a third or fourth party, they were deemed “plaintiff” or“defendant” depending on their role in the claim, counterclaim, or cross-claim to which the summary judgmentmotion pertained. For instance, if a third party moved for summary judgment to dismiss the plaintiff’s claim againsther, she would be deemed a defendant. However, if a third party moved for summary judgment on her counterclaim

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• Summary judgment disposition151

• Self-represented party152

• Appeal status153

The process of reviewing and coding the data for appeals is worth briefly noting, as it was

required both to ensure that cases were not double-counted, and that the ultimate result of a case

was properly recorded. In addition to coding the variables noted above, all decisions of the Court

of Appeal and Divisional Court were coded as to whether they granted, dismissed, or partially

granted the appeal before it (leave motions in the Divisional Court were coded as such then

excluded from further analysis). I then located in the dataset the decision which formed the basis

of the appeal, and coded it as to whether it was reversed, affirmed, or partially granted.

For the purpose of counting the number of motions for summary judgment heard in the analysis

below, only the summary judgment motions at first instance were included in the dataset;

appeals were excluded so each motion was only counted once, when it was first heard. For the

purpose of determining the number and proportion of summary judgment motions granted, only

one decision reflecting the final determination of the summary judgment motion was included in

the dataset; dismissed appeals, and reversed and partially-reversed motion decisions were

excluded.154

against the plaintiff (defendant by counterclaim), the third party would be deemed a plaintiff for the purpose of thesummary judgment motion.

151 Coded as follows: (1) Granted; (2) Dismissed; (3) Partially granted; (4) Granted for one defendant, but dismissedfor another; (5) Motion granted, cross-motion dismissed; (6) Cross-motion granted, motion dismissed; (7) Partiallygranted for non-moving party; (8) Granted for non-moving party.

152 Coded as follows: (1) losing party was self-represented; (2) winning party was self-represented; (3) both partieswere self-represented; (4) “no one appearing” for losing party. I note that where a party was unrepresented but atleast one other party with whose interests were aligned was represented by counsel, the party was not deemed to beself-represented. This arose on very few occasions, typically in the context of co-defendants with substantiallyoverlapping interests in defending the claim.

153 Coded as follows: (1) Appeal granted; (2) Appeal dismissed; (3) Appeal partially granted; (4) Appealed andreversed; (4) Appealed but affirmed; (5) Appealed, partially granted; (7) Leave motion; (8) Appeal dismissed, butunderlying decision not reported; (9) Appeal granted, but underlying decision not reported.

154 A few further notes on coding appeals: the “Moving party” on an appeal was deemed to be the party who initiallybrought the motion – not the party who brought the appeal (as will be discussed below, this variable is intended tocapture whether plaintiffs or defendants fare better on summary judgment motions, so the party’s status must beidentified with the ultimate disposition). Any appeals which pertained to motions decided before the study period(i.e. prior to 2004) were excluded from the database.

34

A copy of the dataset and worksheets used to make the calculations in this paper is included at

Appendix D.

5.2.3 Notes respecting the comprehensiveness of the dataset

The process of reviewing appeal decisions revealed an important issue with the dataset: there

were 168 appeal decisions where the underlying motion decision was never reported.155 These

decisions were coded in a manner so they could stand in for the unreported lower court decision:

the “date heard” variable was modified to refer to the date the original motion was heard, as

indicated in the appeal decision. The appeal decision could then be used in both the analysis of

the number of motions heard and of the number and proportion of motions granted.

Although this issue could be addressed for the decisions in the database, it raises the question of

how many decisions are not (and could not be) in the database because they were not reported. I

embarked on this project with the inaccurate assumption that Ontario’s courts were reporting all

its summary judgment decisions to Quicklaw, Westlaw, and/or CanLII. Discovering that

numerous appeals pertained to summary judgment motion decisions that were unreported proved

this assumption to be incorrect.

There were 168 appeal decisions in the dataset for which the underlying motion decision was not

reported. There were a total of 509 appeal decisions in the dataset, meaning that of all summary

judgment appeals decided from 2004-2015, 33% pertained to decisions that were not reported on

Quicklaw, Westlaw, or CanLII. Although this is a rough measure, it suggests that a significant

proportion of motion decisions in Ontario courts go unreported.

As a result, the unfortunate reality is that the dataset used for this analysis does not include all

summary judgment motion decisions in Ontario courts, as it is limited to those decisions that

were reported. By one measure (noted above), it appears reported decisions amount to about two

thirds of all decisions, but it is not possible to know what decisions are not reported.156

155 The appeal decision was noted up in Quicklaw (with further spot checks on Westlaw and CanLII) to confirm thatthe lower court decision’s absence in the database was not due to human error (i.e. a problem with the search terms)or a gap in coverage on Quicklaw. In each of these 168 cases, the lower court decision could not be found on any ofQuicklaw, Westlaw, or CanLII.

156 I note that prior to developing my methodology of pulling all reported decisions from Quicklaw, I first spokewith two representatives from the office of Management Information at the Ontario Ministry of the AttorneyGeneral (MAG) about the possibility of obtaining summary judgment data directly from the Ontario Superior Court.

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It appears, however, that the proportion of unreported decisions remains fairly consistent across

the study period: the distribution of appeals of unreported decisions is substantially similar to the

distribution of all appeals of summary judgment decisions during the period:

Figure 1: Distribution of appeals of unreported summary judgment motions by year, compared to distribution of totalappeals of summary judgment motions by year.

Lastly, in reviewing all appeal decisions, a handful of cases were discovered where the

underlying decision was reported, but was not captured in my search terms (this occurred fifteen

times – out of 509 appeals, this represents 2.9%). Each of these cases was collected, reviewed,

and added to the dataset. In each case, it had not been gathered in the original data collection

because the text of the decision did not include the terms “motion” or “summary judgment” (or

the alternate spelling, “summary judgement”).157 Although, as noted in section 5.2.2 above, the

Unfortunately, however, this was not possible. Court administration is arranged at the regional level (i.e. accordingto the eight judicial regions in Ontario: Central East, Central South, Central West, East, Northeast, Northwest,Southwest, and Toronto), and until recently court files were paper-based and physically located in each region’scourt office. From my discussions with the MAG representatives, I understand that it was not until 2009 that aunified electronic filing database was rolled out across all eight judicial regions in Ontario (Interview with JimAndersen and Balwant Neote, January 11, 2016). Moreover, between 2009 and 2014, there were further efforts toupdate and consolidate Ontario courts’ case management systems into a new Court Information ManagementSystem, but this project was abandoned when only partially completed (see, e.g., Drew Hasselbeck, “Ontario movestowards digital court records”, Financial Post, May 9, 2012, retrieved May 20, 2016, online:http://business.financialpost.com/legal-post/ontario-moves-toward-digital-court-records and Allison Jones, “Ontarioadmits it blew $4.5-million on failed court modernization project”, National Post, September 19, 2014, retrievedMay 20, 2016, online: http://news.nationalpost.com/news/canada/ontario-admits-it-blew-4-5-million-on-failed-court-modernization-project). As a result, although some data could be obtained from MAG on summary judgmentmotions, the data would be incomplete (as it would not cover the time period required of this study), and it wouldnot necessarily be consistent across judicial regions in Ontario. Using data obtained from reported summaryjudgment decisions was thus the preferred form of obtaining data that was consistent and as comprehensive aspossible over the full study period.

157 Collecting decisions on the basis of search terms was required because there is no straightforward way tootherwise gather all summary judgment motions or motions decided pursuant to Rule 20; neither judges nor thecourts label or otherwise categorize decisions as such, and the databases of decisions citing certain rules in Quicklawand Westlaw are unfortunately inconsistent and under-inclusive for our purposes (they tend to categorize cases bywhether the text of the decision including the words “rule 20” or “r. 20”, which raises the same problem as searchterms, but to a greater degree).

36

search terms used were vastly over-inclusive, it was perhaps inevitable that a few decisions

would not be captured because of the particularities of wording by a handful of judges in a

handful of cases. Ultimately, the fifteen decisions (which were added to the database, but may

represent a sample of other Rule 20 motions that were not captured) pale in comparison to the

168 decisions that were simply unreported – either way, the dataset cannot be totally

comprehensive, but rather a substantial (perhaps two-thirds) representative sample of all

decisions pursuant to Rule 20 during the study period.

5.3 Number of motions for summary judgments rendered

The number of motions for summary judgment rendered has in fact increased since the reforms

came into effect on January 1, 2010. In every year since the reforms, the number of summary

judgment decisions has been greater than all the years prior to 2010 reviewed:

Figure 2: Number of summary judgment motions decided in Ontario, by year decision was rendered (2004-2015).

Notably, following an initial high watermark in 2011, there is a clear decrease in the number of

motions heard in 2012 and 2013 (although the number of motions heard in these years still

37

remained greater than in the years prior to the rule change). This decrease is likely due to the

decision in Combined Air in December 2011, in which the Court of Appeal emphasized the

benefits of trial and held that summary judgment under the new rule should only be granted if the

motion judge can gain a “full appreciation” of the facts without a trial. This suggests that

litigants and lawyers making decisions about whether to file a summary judgment motion

understood the Combined Air decision as reining in the expansion of the rule.

However, after the Supreme Court’s decision in Hryniak on January 23, 2014 made clear that the

summary judgment procedure should be used more often, we can observe the number of motions

increasing once again. The increase in 2014 is small, but the increase in 2015 is dramatic. The

delay before we can observe the substantial increase in the number of summary judgment

decisions rendered is likely due to the time it takes for motions to work their way through the

court process – it takes several months to prepare, schedule, and eventually argue a motion once

a litigant decides to pursue summary judgment,158 and over 90% of summary judgment motions

heard in 2014 were reserved for an average of 75 days before a decision was ultimately

rendered.159 Many litigants who filed motions in response to the Supreme Court’s decision in

Hryniak in January 2014 would thus not see a decision rendered on their motion until 2015.

Ultimately, the number of summary judgment motions decided in Ontario in 2015 was a 70%

increase over the number decided in 2009 (the last year under the old Rule 20, as well as the year

in the study period prior to 2010 with the greatest number of summary judgment motions). Even

before appellate courts were able to offer guidance, and after the Court of Appeal interpreted the

rule in a restrictive manner in Combined Air, the number of summary judgment motions

increased under the new rule: there was a 22% increase in 2010 over 2009, and a 21% increase in

motions decided in 2013 (the year in the study period under the new rule with the fewest

158 The wait time for a summary judgment motion to be scheduled and heard varies by court region, and can changeover time as the court develops new practice directions and processes to schedule motions. From personalexperience practicing in Toronto in 2014 and 2015, it could take a couple months to prepare and exchange motionmaterials, at which time the parties would need to attend motion scheduling court to get a summary judgment date,which could be four to six months away. In 2015, the Toronto region instituted a new system called Civil PracticeCourt, which required parties to be ready for their motion to be heard within 100 days in order to get a date – in myexperience, although this reduced the delay between scheduling the motion and having it heard, it increased the timefrom initiating a motion to having it scheduled. In either case, further delay could result in scheduling andconducting cross examinations on affidavits.

159 See calculations in Appendix E, worksheet entitled “Reserve time”.

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summary judgment decisions rendered). Overall, the number of summary judgments decided

between 2010-2015 was 65% greater than the number decided between 2004-2009.

Another way to consider patterns in the number of summary judgment motions is by the date the

motion was heard (rather than when the decision was rendered). The number of motions heard

increased 2010 and 2011, before falling in 2012 and 2013 following Combined Air. In 2014,

following Hryniak, the number of motions heard jumped up once again:

Figure 3: Number of summary judgment motions decided in Ontario, by year motion was heard (2004-2015).

Although the number of motions heard appears to decrease in 2015, this can likely be accounted

for by the fact that the dataset was limited to judgments rendered up to December 31, 2015. As

judgments are often reserved for a number of months after they are heard, it is likely that more

motions were heard in 2015 but had not been released by the end of the study period.160 This

160 Summary judgment motions heard from 2010-2015 were reserved for an average of 59 days: see Appendix E,worksheet entitled “Reserve time”. If one views the 2015 data as representing just 306 days of the year to account

39

explanation is supported by the data broken down by quarter; the number of decisions is

generally increasing in Q1 and Q2 of 2015, but there is a sharp decrease in Q3 and Q4:

Figure 4: Number of summary judgment motions decided in Ontario by year and quarter motion was heard (2004-2015).

Interestingly, MAG statistics indicate that both the overall number of new civil actions initiated

in Ontario and the number of proceedings heard (including motions) by the Superior Court per

year decreased after 2009:161

for judgments under reserve, then extrapolate to estimate how many motions would be heard over 365 days of 2015,we would see 311 decisions heard in 2015 – the highest of all years in the study period.

161 “New civil actions” includes all new files commenced by claim, statement of claim, notice of action, and third orsubsequent party claim, and does not include Small Claims Court proceedings or family proceedings. “Proceedingsheard” includes trials, pre-trials, settlement conferences, motions, case conferences, assessment hearings, statushearings, references before Masters, passing of accounts, and appeal hearings. Unfortunately, MAG data for thenumber of proceedings heard is only available by MAG fiscal year (April 1 to March 31), and only up to 2012-2013,so it is not possible at this time to assess the trends observed following Combined Air and Hryniak as against thetotal number of hearings. It is worth noting, however, that when summary judgment motions heard are analyzed byMAG fiscal year, there is no significant change to the patterns observed when reviewing by calendar year. Sources:“Number of New Actions Received” (data table obtained on June 14, 2016 by request to the ManagementInformation Unit, Court Services Division, Ministry of the Attorney General; on file with the author); Ministry ofthe Attorney General Court Services Division, "Annual Report 2004/05", at p. B5, April 2005, retrieved May 28,

40

2016, online:https://web.archive.org/web/20151204210639/http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/courts_annual_05.pdf (2003-2005 data); Ministry of the Attorney General Court Services Dvision, "Annual Report 2008/09"at p. 31, retrieved May 28, 2016, online:https://web.archive.org/web/20150918231116/http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/courts_annual_08/Court_Services_Annual_Report_FULL_EN.pdf (2005-2008 data); Ministry of the Attorney General CourtServices Division, "Annual Report 2012-2013" at p. 30, retrieved May 28, 2016, online:https://web.archive.org/web/20151204210257/http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/courts_annual_12/Court_Services_Annual_Report_FULL_EN.pdf (2008-2013 data).

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Figure 5: Number of new civil proceedings initiated and total number of civil hearings in the Ontario Superior Court,by calendar year and MAG fiscal year (April 1- March 31), respectively. Source: MAG Court Services Division AnnualReports and data tables (see footnote 161).

This suggests that the increase of summary judgment motions after the reforms is not attributable

to an increase in the number of motions generally, or an increase in the number of actions in the

Ontario Superior Court.

-

20,000

40,000

60,000

80,000

100,000

120,000

140,000

160,000

2 0 0 4 - 2 0 0 5 2 0 0 5 - 2 0 0 6 2 0 0 6 - 2 0 0 7 2 0 0 7 - 2 0 0 8 2 0 0 8 - 2 0 0 9 2 0 0 9 - 2 0 1 0 2 0 1 0 - 2 0 1 1 2 0 1 1 - 2 0 1 2 2 0 1 2 - 2 0 1 3

CIVIL PROCEEDINGS HEARD IN ONTARIO

0

10,000

20,000

30,000

40,000

50,000

60,000

70,000

80,000

2 0 0 6 2 0 0 7 2 0 0 8 2 0 0 9 2 0 1 0 2 0 1 1 2 0 1 2 2 0 1 3 2 0 1 4 2 0 1 5

NEW ACTIONS COMMENCED IN ONTARIO

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5.4 Number of motions for summary judgment granted

The data also demonstrate an increase in the number of summary judgment motions granted and

partially granted each year following the implementation of the 2010 amendments:162

Granted Partially granted Dismissed Total

2004 82 15 51 148

2005 83 15 68 166

2006 64 11 64 139

2007 73 11 77 161

2008 88 17 73 178

2009 112 22 62 196

2010 136 17 90 243

2011 176 33 82 291

2012 135 28 103 266

2013 131 29 83 243

2014 134 33 83 250

2015 216 41 81 338

Total 1430 272 917 2619Table 1: Number of summary judgment motions granted, partially granted, and dismissed, by year of judgment(2014-2015).

162 The categories of “Granted”, “Dismissed”, and “Partially granted” include groups as follows: I deemed a motionto have been “Granted” where summary judgment was dispositive of the action, including where there were crossmotions and one was wholly granted and the other dismissed. I deemed a motion to have been “Partially granted”where a motion for partial summary judgment was granted; where a motion for summary judgment was granted inpart (on some issues but not all); and where summary judgment was granted for one party, but not other movingparties. Motions were deemed “Dismissed” when the motion was wholly dismissed. These dispositions represent thefinal disposition of the motion as at December 31, 2015, including any appeals whose decisions had been renderedby that date (i.e. if a motion was granted by the motions judge but an appeal was granted dismissing the motion, themotion is deemed to have been dismissed). Considering the final disposition on appeal, rather than a decision at firstinstance that was reversed or varied, is the reason for the small discrepancy in year-over-year totals when comparedto Figure 2.

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Figure 6: Number of summary judgment motions granted or partially granted, by year of judgment (2004-2015).

Once again, the greatest increases can be seen in 2011 and 2015 – one year after each of the

implementation of the new Rule 20 and the Hryniak decision.163 Moreover, the number of

motions granted and partially granted drops sharply in 2012, following the Combined Air

decision. This suggests that not only were litigants and lawyers’ decisions as to whether to bring

a summary motion influenced by the changes to Rule 20 and judicial interpretation of the new

rule, but that motions judges followed the Court of Appeal’s direction in Combined Air that they

must be able to obtain a “full appreciation” of the evidence in order to grant summary judgment

and reined in the use of their expanded powers accordingly.

The number of summary judgment motions granted or partially granted remained at that

decreased level (albeit still at least 21% greater than pre-2010 levels) until 2015 saw an increase

in motions before the court following Hryniak. In 2015, 257 summary judgment motions were

granted or partially granted – nearly double the number that had been granted or partially granted

in 2009.

163 This is consistent with our estimate of the time required for a motion initiated after (in response to) a key event tobe prepared, scheduled, heard, and decided: see supra notes 158 and 159 and the accompanying text.

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5.5 Proportion of motions for summary judgment granted

In addition to the number of summary judgment motions granted under the new Rule 20, we

must also consider whether the proportion of motions granted has changed over the study period

in light of the revised test for granting summary judgment; motions judges’ new powers to assess

and weigh evidence; and the push for a “culture shift” away from viewing traditional trials as the

default and preferred means of civil dispute resolution.

In this regard, the data is a little less clear.

GrantedPartiallygranted

Granted ORpartially granted Dismissed

2004 55% 10% 66% 34%

2005 50% 9% 59% 41%

2006 46% 8% 54% 46%

2007 45% 7% 52% 48%

2008 49% 10% 59% 41%

2009 57% 11% 68% 32%

2010 56% 7% 63% 37%

2011 60% 11% 72% 28%

2012 51% 11% 61% 39%

2013 54% 12% 66% 34%

2014 54% 13% 67% 33%

2015 64% 12% 76% 24%

2010-2013 55% 10% 66% 34%

2014-2015 60% 13% 72% 28%

2004-2009 51% 9% 60% 40%

2010-2015 57% 11% 68% 32%Overallperiod 55% 10% 65% 35%

Table 2: Proportion of summary judgment motions granted, partially granted, and dismissed, by year of judgment(2014-2015).

In comparing the six-year periods before and after the amendments, the proportion of summary

judgment motions granted or partially granted has gone up from 60% to 68%.

Given that standard for summary judgment was in flux for the first few years of the new Rule 20,

as motions judges muddled through their own interpretations of the rule and followed the Court

of Appeal’s later-overruled guidance in Combined Air, one might focus on the outcomes of

summary judgment motions decided in the last two years (essentially, the period since Hryniak)

as compared to outcomes in the pre-2010 period. This reveals an even bigger change: the

proportion of motions granted or partially granted increased from 60% in 2004-09 to 72% in

2014-15. (One notes, however, that the proportion of motions granted or partially granted in the

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2010-2013 period of flux under the new Rule 20 remained greater than in the pre-2010 period

(66% vs. 60%).

The proportion of motions granted, partially granted, and dismissed during the relevant periods

can be illustrated as follows:

Figure 7: Proportion of summary judgment motions granted, partially granted, and dismissed (periods in 2004-2015).

These findings suggest that the relaxed test for granting summary judgment; expansion of

motions judges powers to assess and weigh evidence; and the push for a “culture shift” did, in

fact, result in a greater proportion of summary judgment motions granted. However, when

breaking down the data year-by-year, these proportions vary significantly:

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Figure 8: Proportion of summary judgment motions granted, partially granted, and dismissed, by year of judgment(2004-2015).

In particular, the year-over-year data show that in both 2004 and 2009, under the old Rule 20,

66-68% of summary judgment motions were granted or partially granted – a greater proportion

than in 2010 and 2012, and a similar proportion to 2013 and 2014. Only in 2011 and 2015 were

the proportions of motions granted and partially granted greater than they had been in every year

studied prior to the amendments.

Notably, the proportion of summary judgment motions granted or partially granted in 2004 and

2009 is significantly greater than in the other four pre-amendment years studied. In each of 2005-

2008, the proportion remained below 60% – lower than all years under the new Rule 20.

Considering the entire six-year pre-amendment period as a whole certainly suggests the new rule

made a difference to motions judges’ ability and/or inclination to grant summary judgment –

perhaps the outcomes in summary judgment motions in 2004 and 2009 were aberrations.

Nevertheless, a review of the year-over-year data urges caution in drawing sweeping

conclusions. More time may be required before we can firmly conclude that the new Rule 20 has

increased one’s chances of success on a summary judgment motion.

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5.6 Other findings

The assembly of a large dataset on summary judgment motions allows us to consider other

questions about civil dispute resolution. While gathering and reviewing the dataset for this study,

I observed and tracked additional variables for each case, including whether any of the parties

was self-represented, whether a cross-motion for summary judgment was heard, and whether a

summary judgment motion was heard before a Master (rather than a judge) or on the

Commercial List.

In this section, we will briefly review some interesting findings that arose from the dataset

collected and analyzed for this study.

5.6.1 Self-represented plaintiffs and summary judgment motions

In November 2015, the National Self-Represented Litigants Project (“NSRLP”), a research

group led by Dr. Julie Macfarlane of the University of Windsor Faculty of Law, released a report

on how summary judgment procedures affected self-represented parties. Their conclusions were

startling: they reported a 1160% increase in the use of summary judgment procedures against

self-represented litigants (“SRLs”) from 2004 to 2014 (800% when excluding cases where the

SRL or her case were found to be “vexatious”), and a success rate of 96% in summary judgment

procedures used against SRLs in 2014.164

The NSRLP elaborates on these findings and their methodology in their full report, “The Use of

Summary Judgment Procedures Against Self-Represented Litigants: Efficient Case Management

or Denial of Access to Justice?” (“the NSRLP Report”).165 First, the aforementioned figures are

not limited to motions for summary judgment pursuant to Rule 20 – they also include motions to

strike under Rule 20, and other decisions (from throughout Canada) that refer to there being “no

164 National Self-Represented Litigants Project, “Summary Judgments – The Backstory That May Shock You”,National Self-Represented Litigants Project Blog, November 16, 2015, retrieved May 30, 2016, online:https://representingyourselfcanada.com/2015/11/16/summary-judgments-the-backstory-that-may-shock-you/[NSRLP Blog].

165 Julie Macfarlane, Katrina Trask & Erin Chesney for the National Self-Represented Litigants Project, “The Use ofSummary Judgment Procedures Against Self-Represented Litigants: Efficient Case Management or Denial ofAccess to Justice?”, November 2015, available online:https://representingyourselfcanada.files.wordpress.com/2015/11/nsrlp-the-use-of-summary-judgment-procedures-against-srls1.pdf [NSRLP Report].

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genuine issue for trial”, “no chance of success”, or no “triable issue”, or state that it is “plain and

obvious that the action cannot succeed”.166 Moreover, their data included just the years 2004 and

2014, so reviews a snapshot at the beginning and end of a ten-year period (without assessing the

greater context).

The NSRLP Report also honed in on Ontario cases citing Rules 20 and 21.167 Unfortunately for

our purposes, they did not distinguish between the two in their study. When reviewing motions

pursuant to Rules 20 and 21, the NSRLP found that the number of such motions where both

parties were represented increased 93% from 2004 to 2014 (from 33 to 61), whereas the number

of such motions brought against a self-represented party increased by 225% during that period

(from 4 to 13).168 Considering the rate of success of Rule 20 and 21 motions, the NSRLP found

that the success rate when both sides were represented was 61% in 2014, while motions brought

against SRLs were 88% successful in 2014.169

The NSRLP noted in particular the “striking difference in the success rate” of these motions

when brought against SRLs (88% in 2014, 100% successful in 2004), vs. when brought by SRLs

(none successful in either 2014 or 2004), and those brought between represented parties (61%

successful in 2014, 70% successful in 2004).170 They concluded the report by expressing concern

that efforts to avoid undue expense and delay do not prejudice access to justice,171 noting the

need for further data collection in this area, hoping that their work may provide impetus for such

a project.172

166 Ibid at 6.

167 Rule 21 provides for a motion to strike a pleading where it discloses no reasonable cause of action or defence. Itis a stringent standard, which tends to be applied only where the court finds that, assuming all facts pleaded to betrue, it is plain and obvious that the action is certain to fail: see Odhavji Estate v. Woodhouse, 2003 SCC 69 at para15. Rule 21 also permits a party to move for the determination of a question of law before trial, where thedetermination of the question may dispose of all or part of the action, substantially shorten the trial, or result insubstantial cost savings: Rules, supra note 1, r 21.01(1).

168 NSRLP Report, supra note 165 at 11-13.

169 NSRLP Report, supra note 165 at 12-13.

170 Ibid at 16.

171 Ibid at 13.

172 Ibid at 18.

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The data collected for the herein study provides the opportunity to expand upon the NSRLP’s

work. By analyzing a more comprehensive dataset, we can observe trends in summary judgment

motions involving self-represented litigants over time. On a cursory review, we can see that the

increase in the number of summary judgment motions involving self-represented plaintiffs

generally reflects the pattern of increased Rule 20 motions across Ontario:

Figure 9: Number of summary judgment motions involving a self-represented party, by year of judgment (2004-2015).

Digging a little deeper, we can compare the year-over-year patterns respecting motions for

summary judgment brought against self-represented plaintiffs, considering both the number of

motions determined and the proportion of those motions that were granted:

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Motion granted173 Motion dismissed Total Success rate2004 15 1 16 94%2005 14 2 16 88%2006 11 2 13 85%2007 7 1 8 88%2008 11 1 12 92%2009 14 6 20 70%2010 24 1 25 96%2011 30 3 33 91%2012 23 2 25 92%2013 31 31 100%2014 25 1 26 96%2015 39 2 41 95%2004-2009 72 13 85 85%2010-2015 172 9 181 95%

Total 244 22 266 92%

Table 3: Number and outcomes, and success rates of summary judgment motions brought by a represented partyagainst a self-represented party (2004-2015).

First, it is undoubtable that the proportion of summary judgment motions brought against self-

represented parties that are granted is higher than the norm. The average rate of success174 for

motions against SRLs over the 2004-2015 period was 92%, as compared with a 65% success rate

overall. In the 2010-2015 period, under the new Rule 20, 95% of summary judgment motions

brought against self-represented plaintiffs were granted (as compared to 68% overall during that

period). Post-Hryniak, 72% of motions for summary judgment overall have been successful,

while 96% of motions brought against SRLs have been successful.

We can also consider the increase in the number of summary judgment motions brought against

SRLs in context. We recall that the total number of summary judgment motions decided in

Ontario between 2010-2015 was a 64% increase over the 2004-2009 period. When limiting our

review to motions brought against a self-represented plaintiff, the increase is 113%. We also

found above that the number of summary judgment motions decided in Ontario in 2015 was a

70% increase over the number decided in 2009. The number in motions brought against SRLs in

2015 is 105% greater than the number in 2009. While the data do reveal a noticeable increase in

summary judgment motions brought against self-represented plaintiffs in the 2004-2015 period,

the figures resulting from this study are a far cry from the 1180% increase initially reported in

173 Includes motions partially granted.

174 Proportion of motions granted or partially granted.

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the NSRLP study.175 Moreover, this study demonstrates the context of an increase in summary

judgment motions generally, in light of the reforms to Rule 20 and their judicial interpretation.

As a final note regarding self-represented litigants, SRLs brought seventeen motions for

summary judgment against represented parties from 2004-2015: four prior to 2010, and thirteen

under the new Rule 20. SRLs were successful in only three of these motions: one in 2013, and

two in 2015. The sample size is too small to draw any meaningful conclusions, but it is

interesting to note that self-represented parties have been able to succeed on summary judgment

against represented parties under the new Rule 20, where they had not done so under the old rule,

and that is particularly so now that the “culture shift” is underway.

5.6.2 Subsets of the Superior Court: The Commercial List & Masters

Another issue considered as part of this study was the role of the decision-maker on a summary

judgment motion. In particular, I assessed the court in which the decision was rendered, and

whether the decision-maker was a judge or a master.

Tracking the court was done in part to ensure appeals and motions for leave to appeal of existing

summary judgment decisions were not counted twice. However, we could also observe whether

an action was on the Commercial List. The Commercial List is a subset of the Ontario Superior

Court in the Toronto Region; it was established in 1991 as a venue for cases involving issues of

commercial law. Having a matter heard on the Commercial List is voluntary (except for

bankruptcy matters), but it has special procedures to expedite the hearing of certain actions,

applications, and motions.176

I hypothesized that in light of the goal of the Commercial List to expedite the hearing of matters

that require a speedy resolution, and the sophistication of parties to matters on the Commercial

List, it may show a more dramatic increase in the number of summary judgment motions or the

proportion of summary judgment motions granted following the reforms, or both.

175 Or the 800% increase reported with respect to “summary judgment procedures” brought against SRLs not foundto be vexatious, or the 225% increase reported with respect to Rule 20 and 21 motions brought against SRLs.

176 Consolidated Practice Direction Concerning the Commercial List, Ontario Superior Court of Justice, effectiveJuly 1, 2014, retrieved May 31, 2015, online: http://www.ontariocourts.ca/scj/practice/practice-directions/toronto/commercial/.

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Unfortunately, the number of summary judgment motions brought in matters on the Commercial

List is too small to draw any statistically significant conclusions:

# SJ motions # Granted177 % Granted

2004 2 1 50%

2005 1 0%

2006 2 2 100%

2007 5 4 80%

2008 1 1 100%

2009 2 2 100%

2010 5 3 60%

2011 6 3 50%

2012 5 3 60%

2013 9 4 44%

2014 1 1 100%

2015 2 1 50%

2004-2009 13 10 77%

2010-2015 28 15 54%

Total 41 25 61%

Table 4: Number and outcomes of summary judgment motions brought in actions on the Commercial List (2004-2015).

Only 41 motions for summary judgment were initiated for matters on the Commercial list from

2004-2015 – 13 prior to 2010, and 28 after the amendments. The average number of summary

judgment motions determined per year increased from 2.2 in 2004-2009 to 4.7 in 2010-2015, but

the proportion of summary judgments granted in the post-amendment period actually decreased

from 77% to 54%. Overall during the study period, the success rate for summary judgment

motions on the Commercial List was 61% (as compared to a 65% success rate for all summary

judgment motions in Ontario).

The data respecting summary judgment motions heard by masters, rather than judges, is more

interesting. Masters are provincially-appointed judicial officers granted the authority to hear and

determine certain matters in civil cases, including motions, pre-trial conferences, and case

conferences.178 As provincially-appointed officials, they do not have the same inherent

jurisdiction as judges of the Superior Court, but they serve a valuable role in the Superior Court

case management and in expediting the litigation process by resolving procedural disputes.

177 Includes motions partially granted.

178 Ontario Superior Court of Justice, “About Judges and Judicial Officials: Masters and Case ManagementMasters”, retrieved May 31, 2016, online:http://www.ontariocourts.ca/scj/judges/about/#Masters_and_Case_Management_Masters.

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Importantly, the 2010 amendments granted the power to weigh evidence, assess credibility, draw

reasonable inferences, and order oral evidence to judges but not masters, despite masters’

jurisdiction to hear summary judgment motions. As a result, one might suspect that after 2010

litigants would increasingly file their summary judgment motions to be heard by judges, so to

take advantage of the new powers.

The data bear out this hypothesis:

Judge Master Total % heard by Master

2004 141 7 148 4.7%

2005 147 13 160 8.1%

2006 118 6 124 4.8%

2007 146 5 151 3.3%

2008 160 7 167 4.2%

2009 178 7 185 3.8%

2010 216 5 221 2.3%

2011 280 4 284 1.4%

2012 245 3 248 1.2%

2013 222 3 225 1.3%

2014 220 6 226 2.7%

2015 296 2 298 0.7%

2004-2009 890 45 935 4.8%

2010-2015 1479 23 1502 1.5%

Total 2369 68 2437 2.8%

Table 5: Number and outcomes of summary judgment motions brought in actions on the Commercial List (2004-2015).

Although masters never heard a high proportion of summary judgment motions in the Ontario

Superior Court, this proportion has undoubtedly decreased since the new Rule 20 granted powers

to assess evidence to judges but not masters. In the six years prior to the amendments, masters

heard 45 summary judgment motions out of a total of 890 (4.8%). In the period following the

amendments, masters heard just 23 summary judgment motions out of 1479 filed in the Superior

Court (1.5%). In 2015, the proportion of summary judgment motions determined by masters was

just 0.7%.

It is unclear why the new powers under Rule 20.04(2.1) and (2.2) were granted to judges but not

masters. Ultimately, the data suggest that where both masters and judges have jurisdiction to hear

a motion, but judges may exercise certain powers on the motion that masters may not, litigants

will file their motions before judges. Future study may elucidate the impact of this discrepancy in

authority, and litigants’ response thereto, on any delay in having summary judgment motions and

trials scheduled.

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5.6.3 Prevalence of cross-motions for summary judgment

A final interesting trend observed in the data is a significant increase in the prevalence of cross-

motions for summary judgment following the amendments:

Figure 10: Number of summary judgment motions where at least one responding party filed a cross-motion forsummary judgment, by year of judgment (2004-2015).

Cross-motions Total motions % Motions with cross-motions

2004 3 150 2.0%

2005 4 169 2.4%

2006 3 136 2.2%

2007 0 158 0.0%

2008 6 175 3.4%

2009 2 196 1.0%

2010 5 236 2.1%

2011 20 294 6.8%

2012 13 260 5.0%

2013 3 236 1.3%

2014 12 241 5.0%

2015 20 330 6.1%

2004-2009 18 984 1.8%

2010-2015 73 1597 4.6%

Table 6: Number of summary judgment motions where at least one responding party filed a cross-motion forsummary judgment, by year of judgment (2004-2015).

As revealed in Figure 10 and Table 6, above, cross-motions for summary judgment were filed in

only a handful of cases – an average of 1.8% of all summary judgment motions – prior to the

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2010 amendments. In the six years following the 2010 amendments, this proportion increases to

4.6% of cases with cross-motions. The increase is particularly apparent in the last two years, over

which 5.6% of summary judgment motions were determined alongside corresponding cross-

motions.

Although it is still early, these numbers reinforce the conclusion that the “culture shift” called for

by the Supreme Court in Hryniak is underway. If responding parties are filing cross-motions for

summary judgment, it suggests that neither party believes a trial is necessary to resolve the issues

in dispute, but rather are content with resolving at least some of the issues by way of summary

judgment.

Reviewing the dispositions of those motions where the responding party brought a cross-motion

for summary judgment, we can see that the majority of these actions achieve a final disposition

on the motion (i.e. either the motion or cross-motion is wholly granted):

Motion granted,cross-motiondismissed

Cross-motiongranted, motiondismissed

Finaldisposition

Motion(s)partiallygranted

MotionsDismissed Total

2004 1 2 3 3

2005 3 3 1 4

2006 1 2 3 3

2007 0

2008 2 4 6 6

2009 1 1 2 2

2010 1 3 4 1 5

2011 7 5 12 3 5 20

2012 4 6 10 1 2 13

2013 1 1 2 3

2014 5 6 11 1 12

2015 11 6 17 2 1 20

Total 36 36 72 7 12 91

Table 7: Outcomes of summary judgment motions where at least one responding party filed a cross-motion forsummary judgment, by year of judgment (2004-2015).

The proportion of summary judgment motions with a cross-motion that achieved a final

disposition over the course of the full study period was 79%. In the past two years, since

Hryniak, that proportion has increased to 88%.

The data on cross-motions suggest that summary judgments are increasingly seen as an

acceptable means of dispute resolution by both parties in a dispute, and that, when both sides

seek summary judgment, it is very likely their dispute will be resolved in that manner.

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Analysis & Discussion

6.1 Summary conclusions

The following conclusions emerge from the review and analysis of all reported summary

judgment motions decided between 2004-2015.

6.1.1 Number of summary judgment motions decided

1. The number of summary judgment motions has increased since the 2010 reforms.

2. In every year since the amendments, the number of summary judgment decisions has

been greater than in each of the six years prior to the amendments.

3. The number of summary judgment motions decided in Ontario in 2015 was a 70%

increase over the number decided in 2009.

4. Even before appellate guidance was provided, the number of summary judgment motions

had increased: there was a 22% increase in 2010 over 2009.

5. Overall, the number of summary judgments decided between 2010-2015 was 65% greater

than the number decided between 2004-2009.

6. The number of summary judgment motions has been responsive to judicial direction; in

2012 and 2013, the two years following Combined Air (which promoted a restrictive

interpretation of Rule 20), the number of summary judgment motions decreased to 266

and 238, respectively, from an initial high watermark of 301 in 2011. Moreover,

following the Supreme Court’s push for a “culture shift” in Hryniak, the number of

summary judgment motions increased to its highest level yet (334 decisions rendered in

2015).

7. Overall, the number of motions for summary judgment decided in the six-year period

following the reforms was 64% greater than the number decided in the six years prior to

the reforms.

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8. This data suggests that litigants have, in fact, responded to the summary judgment

reforms by seeking to resolve more of their civil disputes (or at least a part thereof) by

summary judgment. In short, litigants appear to be responding as was intended.

6.1.2 Number of summary judgment motions granted

1. The number of summary judgment motions granted or partially granted has increased

since the 2010 reforms.

2. In every year since the amendments, the number of summary judgment motions granted

or partially granted has been greater than in each of the six years prior to the

amendments.

3. The number of summary judgment motions granted or partially granted in 2015 was 92%

greater than the number granted or partially granted in 2009.

4. The number of motions granted appears to be similarly responsive to appellate guidance;

the greatest increases were in 2011 (the year following the initial implementation of the

new Rule 20) and 2015 (the year after the Hryniak decision), and the number of motions

granted and partially granted dropped sharply in 2012, the year following the Combined

Air decision.

5. Overall, the number of summary judgment motions granted or partially granted in the six-

year period following the amendments to Rule 20 was 87% greater than the number

granted or partially granted in the six years prior to the amendments.

6.1.3 Proportion of summary judgment motions granted

1. Overall, the proportion of summary judgment motions granted or partially granted in the

six-year period after the reforms (2010-2015) was 68%, an increase over the 60% granted

or partially granted in the six-year period prior to the reforms (2004-2009).

2. The proportion of summary judgment motions granted in 2014-2015 (the post-Hryniak

period) increased further to 72%. This may be a better indicator of the success rate of

summary judgments under the new regime, in light of the initial inconsistency in the

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interpretation and application of the new Rule 20 (without appellate guidance, and under

the now-overruled Combined Air “full appreciation” test).

3. Although it appears the success rate on summary judgments has increased following the

reforms, we should refrain from drawing a sweeping conclusion at this juncture. Year-

over-year data on the proportion of summary judgment motions granted or partially

granted showed significant variability in the pre-2010 period, and two of the six pre-2010

years studied actually showed higher success rates than at least two individual years in

the post-2010 period. Given the further increased proportion of successful summary

judgment motions in 2014 and 2015, we are poised to be able to draw a more meaningful

conclusion in a few years after more time as passed since the reforms and since Hryniak.

4. Taken together with the data on the number of summary judgment motions granted,

however, this data suggests that judges have in fact largely responded to the summary

judgment reforms by granting summary judgments to resolve more civil disputes. In

short, judges also appear to be responding as was intended.

6.1.4 Self-represented litigants

1. Self-represented parties have been hit slightly harder by the reforms than represented

parties. Although the overall number of summary judgment motions determined in 2010-

2015 was a 64% increase over the 2004-2009 period, the number of summary judgment

motions brought against self-represented parties increased 113% over that period.

However, the increase in summary judgment motions against self-represented litigants is

far less than has been reported by the National Self-Represented Litigants’ Project’s

recent report.

2. The proportion of successful summary judgment motions brought against self-

represented parties is far greater than the norm. 95% of summary judgment motions

brought against self-represented litigants under the new Rule 20 were granted or partially

granted (as compared with 68% overall). In the post-Hryniak years, 2014-2015, the

success rates were 96% and 72%, respectively.

3. Although too few summary judgment motions are brought by self-represented litigants to

draw any statistically significant conclusions, it is interesting to note that while none of

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these motions were successful under the old rule, self-represented litigants have

succeeded in three out of the thirteen summary judgment motions they commenced

against a represented party under the new Rule 20.

6.1.5 Masters vs. judges

1. After the Rule 20 amendments, which granted the power to weigh evidence, assess

credibility, draw reasonable inferences, and order oral evidence to judges but not masters

(despite masters’ jurisdiction to hear summary judgment motions), the number and

proportion of summary judgment motions heard by masters has decreased.

2. In the six years prior to the amendments, masters heard 45 summary judgment motions

out of a total of 890 (4.8%). In the period following the amendments, masters heard just

23 summary judgment motions out of 1479 filed in the Superior Court (1.5%). In 2015,

the proportion of summary judgment motions determined by masters was just 0.7%.

6.1.6 Cross-motions for summary judgment

1. Prior to 2010, very few parties responding to a summary judgment motion filed a cross-

motion for summary judgment (an average of 3 per year during the pre-2010 study

period, or 1.8% of all summary judgment motions). In the six years following the

reforms, the proportion of summary judgment motions heard alongside a corresponding

cross-motion for summary judgment by the responding party increased to 4.6%. In the

last two years, since Hryniak, the proportion has increased to 5.6%.

2. Over the course of the study period, where both sides brought a summary judgment

motion against the other in a civil dispute, 79% of such motions were dispositive of the

action (the motion or cross-motion was granted in full). In 2014-2015, 88% of such

motions resulted in a dispositive holding.

3. Taken together, these findings reinforce the conclusion that the “culture shift” advised in

Hryniak is underway: summary judgments are increasingly seen as an acceptable means

of dispute resolution by both parties in a dispute and, when both sides seek summary

judgment, it is very likely their dispute will be resolved in that manner rather than

proceeding to a lengthy and expensive trial.

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6.2 Lessons for future civil justice reform

A few lessons on effecting civil justice reform emerge from Ontario’s experience with amending

the rules on summary judgment.

First, it is encouraging to see that litigants responded rationally to efforts to increase the use of

summary judgment procedure: parties filed more summary judgment motions, respondents to

motions filed more cross-motions to resolve the dispute without trial, and when judges were

given more powers on summary judgment than masters, litigants shifted nearly all their summary

judgment motions to be heard before judges. The reforms certainly achieved their intended effect

on litigants’ motion-filing behaviour. The increase in summary judgment motions heard was

immediate, and remained even after the Ontario Court of Appeal urged caution and set the high

“full appreciation” threshold for disposing of an action on summary judgment before trial. This

suggests that litigants’ behaviour can be impacted by amendments to the Rules, even before

appellate courts step in to provide interpretive guidance.

Moreover, we observed that judges similarly responded rationally to the reforms by granting

more summary judgment motions. Although more data should be analyzed to confirm trends in

success rates of summary judgment motion in the years post-Hryniak, it appears motions judges

are making use of their expanded powers and in doing so are increasingly able to find the

necessary facts to resolve the dispute, as intended by the new Rule 20.

Prior to Combined Air, motions judges’ interpretation of their authority under the new Rule 20

varied widely, with some seeing the amendments as a significant expansion of the summary

judgment procedure, and others viewing the reforms as having a minor effect, if any.179 After

four years under the new rule, the Supreme Court of Canada clarified in Hryniak that an

expansive approach to summary judgment was required by the new Rule 20, and in the two years

since we have seen the most dramatic changes in the prevalence and success of summary

judgment motions. This experience suggests that appellate courts’ interpretation (and the

179 See, e.g. Lawless v Anderson, 2010 ONSC 2723 at para 19 per D.M. Brown J., stating that the new Rule 20introduced a “radical change” and “vests in a motion judge the powers typically exercised by a trial judge”,contrasted with Cuthbert v TD Canada Trust, 2010 ONSC 830 at para 11 per Karakatsanis J (as she then was),holding that the test for summary judgment “has not changed” and that “it is not the role of the motions judge tomake findings of fact for the purpose of deciding the action on the basis of the evidence presented on a motion forsummary judgment”.

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accordant delay) may be required before motions judges take a consistent approach in the

application of a new rule.

There is a potential downside, however, to relying on appellate courts to provide an interpretive

approach to meaningfully effect a civil justice initiative. Ontario’s experience with Combined

Air, whose restrictive “full appreciation” test to granting summary judgment was overruled by

Hryniak, threatened to create the same “interpretive erosion” Ontario experienced with the

previous Rule 20 following its introduction in 1985 – although in both cases the summary

judgment rule was amended to expand the use of the procedure, the Ontario Court of Appeal in

both instances restricted the use of the procedure by limiting motions judges’ powers and singing

the praises of the trial process.180 Furthermore, pushing the interpretation of the new Rule 20

through two appellate courts resulted in a period of flux as to the standard to be applied on

summary judgment, creating uncertainty for litigants as to whether their motion would, in fact,

save time and expense. If MAG or the Rules Committee wish to ensure a civil justice reform

measure achieves its intended effects without the intervention of an appellate court, amendments

to the Rules must be clear and explicit about judges’ powers and when they may be used, and the

test to be applied in applying the rule in question.

6.3 Questions for future study

Despite recent improvements in the use of summary judgment procedures, Ontario’s civil justice

system has a long way to go in making the civil justice system more accessible and affordable

for Ontarians. This study provides some insight as to how one reform measure affected litigants’

and judges’ behaviour in filing and granting motions for summary judgment. There remain,

however, numerous questions about whether and how the new summary judgment rule enhances

access to justice. The following are a few issues for further study to build on this analysis:

1. Did Hryniak have a similar effect on summary judgment motions in other provinces

(and/or in the Federal Court), even if they did not amend the text of their summary

judgment rule?

180 See Part 2.1, above.

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2. What happens to cases where a summary judgment motion is dismissed or only partially

granted?

a. What proportion go on to trial?

b. Are there many consent dismissals shortly after, which may indicate that once

parties put their “best foot forward” on summary judgment they are inclined to

settle out of court?

c. Are motions judges following through on the suggestion in Hryniak to follow

through with the matter using case management procedures?

3. What does the data show in respect of the time between commencement of a case to its

final disposition? Has the increased use of summary judgment overall decreased the time

it takes to resolve a civil dispute? In actions where a summary judgment motion is

pursued unsuccessfully, does the motion have the effect of increasing the duration (and

corresponding cost) of the case?

4. How long is the delay in scheduling a summary judgment motion vs. a trial, in various

judicial regions? Has the increased use of summary judgment motions increased the

delay in scheduling a summary judgment motion? Has our problem of waiting months

for trial been replaced or supplemented with a problem of waiting months for a summary

judgment motion?

5. Do litigants whose actions are resolved by way of summary judgment feel it was an

adequate substitute for a trial? Or has increased efficiency in access to the courts reduced

the quality of justice that results?

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Conclusion

The data analyzed in this study demonstrate that the “culture shift” espoused by the Supreme

Court in Hryniak following the implementation of the new Rule 20 has begun. It appears the

amendments to summary judgment procedure have achieved their intended goal of making the

civil justice system more accessible and affordable for Ontarians, as we have observed an

increase in the number of summary judgment motions determined, an increase in the number of

summary judgment motions granted, and, at a high level, an increase in the proportion of

successful summary judgment motions since the reforms.

There remains much work to do in improving access to civil justice in Canada, but the

amendments to Ontario’s summary judgment rule and its subsequent judicial interpretation have

been a step in the right direction. One hopes the lessons learned from Ontario’s new Rule 20 will

provide guidance for other civil justice reform projects, so we can continue achieving meaningful

results in enhancing access to justice for Canadians.

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Appendices

See attached.

effecting a culture shift – an empirical review of ontario’s summary judgment reforms ·...

Documents