1 – Background Information
A summary judgment procedure is designed to improve the efficiency of civil litigation. Used properly by the plaintiff, it can be utilized to receive judgment without the time and cost associated with a full trial. Used properly by the defendant, it can be utilized to dispose of an action without the need for the time and cost associated with a full trial.
There have been a number of key changes regarding the law in Saskatchewan with regard to summary judgments, which insurers and their counsel should keep top of mind when dealing with matters in that province.
2 – Law Surrounding Summary Judgment Applications
A – Changes to the Saskatchewan Queen’s Bench Rules
In 2013, the Saskatchewan Queen’s Bench Rules were significantly overhauled in Saskatchewan. There is now a much greater emphasis on proportionality and efficiency in conducting litigation. These new “Foundational Rules” are found at Rule 1-3 of the Queen’s Bench Rules. In Brooks v. Brooks 2013 SKQB 325, Justice Danyliuk commented on the changes to the Queen’s Bench Rules. He wrote that the rules were “more than mere slogans”, and that they would “strongly influence and guide the manner in which litigation is to be conducted in [Saskatchewan].”
B – Supreme Court of Canada Weighs In – Hryniak decision
At the same time that the Saskatchewan Queen’s Bench Rules were being significantly revised, the Supreme Court of Canada was considering the case of Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87 [Hryniak]. Justice Karakatsanis wrote for the Court that the challenge of ensuring access to justice amidst increasingly protracted and expensive trials requires a culture shift that will promote timely access to the civil justice system. The Court suggested that the culture shift requires moving away from conventional trials, and towards simplified pre-trial procedures and proportional procedures tailored on a case-by-case basis. The Court went on to include summary judgment motions as part of the path toward achieving increased access to justice.
C – Effect of Queen’s Bench Rules and Hryniak Decision in Saskatchewan
The combined effect of the new Queen’s Bench Rules and the Supreme Court of Canada’s decision in Hryniak has led to a fundamental change in the way summary judgment applications are heard in Saskatchewan. A review of the case law on this subject indicates that the Saskatchewan Court of Queen’s Bench has an appetite to hear cases via summary judgment, and that the Saskatchewan Court of Appeal supports this approach.
Justice Barrington-Foote’s synthesis of the principles from Hryniak with Rule 7-2 of the Queen’s Bench Rules as found in Tchozewski v Lamontagne, 2014 SKQB 71, 440 Sask R 34 [Lamontagne], is a frequently cited decision on summary judgment in Saskatchewan. Justice Barrington Foote writes that the overarching consideration in any summary judgment application is that it must be “a fair process that results in a just adjudication of the dispute before the court”. To satisfy this threshold, the court must analyze all evidence and issues raised in the application, in the context of the litigation as a whole.
In addition, Justice Barrington-Foote elaborated on the court’s ability to apply the law to the facts and to make necessary findings of fact in the context of a summary judgment application. He stated that the evidence does not need to be as thorough or complete in an application for summary judgment as it would be at trial. Rather, the judge must simply be confident that the evidence allows him or her to find the facts and apply the relevant legal principles to fairly resolve the dispute. Justice Barrington-Foote also noted that if there is a genuine issue requiring a trial, the court may still determine that a trial can be avoided through weighing of evidence, evaluation of credibility, and drawing of inferences.
D – What Constitutes (or Does not Constitute) a Genuine Issue Requiring Trial?
The Courts have shown a creative approach to resolving conflicts in affidavit evidence on an application for summary judgment. In some cases, a separate hearing may be held to adduce live evidence for the sole purpose of testing that evidence by examination and cross-examination. In Labuick Invesments Inc. v Carpet Gallery of Moose Jaw Ltd., 2017 SKQB 341 [Labuick], the Court wrote that the threshold for a genuine issue requiring a trial will not be met simply because a conflict exists in the affidavit evidence. Rather, if a conflict exists in the affidavit evidence, but documentary evidence, evidence of independent witnesses, or undisputed evidence undermines one affidavit, the court may use such additional evidence to determine which affidavit should be preferred. A conflict in affidavits will only cause there to be a genuine issue requiring a trial if the conflict is so key to the claim or defence that it cannot be resolved on affidavit evidence alone.
Further, summary judgment applications will not be denied simply because there will be more complete evidence available at trial. The Court in Labuick noted that “trial evidence will always be more complete”, and that the Court has flexibility under the QB Rules to fashion a resolution procedure on a case by case basis. Even if there is a genuine issue requiring a trial, summary judgment applications may still be granted, if the procedure can be shaped to ensure that sufficient evidence is before the court to comfortably permit the issue to be resolved fairly, in a cost-effective and proportionate manner.
3 – Other important Saskatchewan Case Law to Consider
A – Complexity of Issues
In Deren v Saskpower and Saskatchewan Watershed Authority, 2015 SKQB 366, Justice Elson held that even cases with complicated and technical facts and evidence can be resolved by way of summary judgment. He wrote that, while a trial of the matter would have occupied at least seven days, the evidence heard in the two day summary judgment application allowed him to grasp the legal issue. He also noted that “summary judgment” does not mean “summary evidence”. On appeal, Justice Caldwell wrote in Deren v SaskPower, 2017 SKCA 104, that case complexity alone is not enough of a basis for a court to reject a summary judgment to proceed.
B – Quality of Evidence
When applying for summary judgment, Justice Elson noted in Deren that parties are required to put their “best evidentiary food forward” to give the court enough material to evaluate the issues and come to a resolution. In Jardine v Saskatoon Police Service, 2017 SKQB 217, the Court reasoned that failure of an applicant to put their best evidentiary foot forward may be sufficient to convince the judge not only to dismiss the application, but to grant judgment in favour of the respondent.
C – Admissibility of Evidence, including Hearsay Evidence
In Sturgess v McIntyre, 2016 SKQB 120, the Court was tasked with deciding whether certain documents filed by the applicant for summary judgment were admissible. The Court noted that in a summary judgment application, the rules should be interpreted broadly and “in a manner that favours proportionality and fair access to affordable, timely and just adjudication of claims”. The Court qualified that although a broad interpretation of the rules is required and the rules of evidence may be relaxed, the rules cannot be stretched to admit documents without a basic foundation for admissibility.
In Kennett v Diarco Farms Ltd., 2018 SKQB 61, the Court that noted the combined effect of the rules regarding affidavit evidence is to create a limited permissibility of hearsay evidence in summary judgment proceedings. In that case, the Court noted that the drafters of the Queen’s Bench Rules would not have accidentally granted permission to use hearsay evidence under the Rules, notwithstanding the fact that hearsay evidence is inadmissible in support of requests for final relief elsewhere in the Rules. The Court noted that while it may seem strange that hearsay evidence is admissible in a summary judgment application, but not in support of a request for other final orders, this contradiction is explained by the liberalization of the rules for evidence in summary judgment applications; a consistency with the Foundational Rules; and an intention to broaden summary judgment applications. This is all part of a “cultural shift” in judicial thinking, as per the Supreme Court of Canada’s instruction in the Hryniak decision.
D – Quantum of Damages
In Carteri v Saskatchewan Mutual Insurance Co., 2018 SKQB 150, Justice Elson noted that the amount of damages at stake in a claim can be a factor with respect to the proportionality of summary judgment; however, a large damages claim will not necessarily preclude an applicant from successfully obtaining summary judgment.
E – Appellate Standard of Review
Appellate courts are deferential to the lower court in appeals of summary judgment applications. In Winnitowy v Winnitowy, 2017 SKCA 12, the Saskatchewan Court of Appeal endorsed the Lamontagne approach used for a summary judgment application by the Court of Queen’s Bench. The Court of Appeal noted that in a summary judgment application an appellate court will only intervene if it is satisfied that the judge in the lower court misdirected himself or herself, or came to a decision so clearly wrong that it resulted in an injustice.
4 – Conclusion
Since the new Queen’s Bench Rules were implemented in 2013 to emphasize proportionality and efficiency, summary judgment applications have undergone significant practical changes in Saskatchewan. The Saskatchewan Court of Queen’s Bench has an increased appetite to dispose of appropriate matters by summary judgment, and the Saskatchewan Court of Appeal is endorsing this approach.
Courts have great flexibility, power, and discretion in assessing summary judgment applications, and the ever-evolving case law indicates that the courts will creatively exercise these powers to resolve matters by way of summary judgment. Lawyers practicing in Saskatchewan should keep this in mind in the initial stages of file management, just as much as when they are crafting arguments, adducing evidence, and requesting relief from the court. Similarly, insurers should keep this in mind when completing their reports and instructing counsel.