The Supreme Court of Canada’s recent decision in Hryniak v. Mauldin 2014 SCC 7 represents a renewed emphasis within civil procedure rules to streamline litigation and thereby promote greater judicial efficiency and access to justice. More recently, the Alberta Court of Appeal has affirmed the appropriateness of summary proceedings with its decision in Windsor v. Canadian Pacific Railway 2014 ABCA 108, concluding that the “myth of trial should no longer govern civil procedure”.

While it remains to be seen whether the Supreme Court’s reasoning in Hryniak will result in any real “cultural” shift in Alberta’s and other jurisdictions’ approach to summary applications (whether for judgment or dismissal, as the case may be), the decision in Windsor serves to highlight that such a shift has commenced. We are optimistic that parties will only benefit from the renewed focus on resolving legal issues in a more cost-effective, time-sensitive manner.

Hryniak serves as an indication that full-blown trials will become increasingly scarce.  In a rather decisive reversal of a previous, more restrictive interpretation of the applicable Ontario Rules of Civil Procedure for summary proceedings (recently affirmed by the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764), the Supreme Court in Hryniak considered circumstances involving a civil fraud claim by a group of investors who alleged that the defendant had absconded with millions of dollars in funds.  Applying Rule 20.04(2.1) of the Ontario Rules of Civil Procedure (which had been amended in 2010), the Supreme Court overturned the Ontario Court of Appeal’s determination that the weighing of evidence, findings on credibility and the drawing of inferences were not suitable matters to be addressed by way of summary applications.  Rather, the Supreme Court determined that such judicial prerogatives, previously reserved for actual trials, should properly be applicable in summary proceedings.  At paragraph 24 of the Hyrniak decision, the Court stated that “undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes” and that  “the full trial has become largely illusory because, except where government funding is available, ordinary Canadians cannot afford to access the adjudication of civil disputes.”

In the decision of Orr v. Fort McKay First Nation, 2014 ABQB 111, Mr. Justice Russell Brown of the Alberta Court of Queen’s Bench considered the Supreme Court’s reasoning in Hyrniak in the context of an application for partial summary judgment in respect of an action on an employment contract; which application had been previously dismissed by a lower level of the Court.  Mr. Justice Brown distinguished Hyrniak opining that it was not directly applicable to the Alberta jurisprudence in respect of summary applications on the basis that:

a – most summary applications in Alberta have historically been brought before Masters (quasi-judicial officials who deal with the vast majority of interlocutory and summary applications*);

b – Masters do not have the authority to weigh evidence, assess credibility draw inferences; and

c- the equivalent Ontario rule of civil procedure (Rule 20) and the prerogatives referenced in Hyrniak were more appropriately applicable to summary trial proceedings in Alberta, as opposed to summary applications such as the one at issue.

Accordingly, Mr. Justice Russell went on to suggest that, if litigants sought to have issues of disputed fact assessed, or evidence weighed by the Court in the context of summary applications, such proceedings should be:

(a) put before a Justice of the Court of Queen’s Bench; and/or,

(b) should be advanced in the context of an actual summary trial.

Summary trials in Alberta remain markedly different from actual trial proceedings in that they generally remain restricted to Affidavit evidence only and do not normally include viva voce evidence.  That said, it would appear that the net effect of Hyrniak in Alberta will be to encourage a greater trend towards streamlining the resolution of legal disputes at the pre-trial stage, if not by way of summary applications before a Justice of the Court of Queen’s Bench (rather than a Master), or at least by way of summary trial.

Subseqeunt to Hyrniak and Orr, the Alberta Court of Appeal in Windsor has further cemented the basis for litigants to resolve substantive issues by way of summary proceedings. Windsor involved a class action commenced by residents and homeowners adjacent to a railway maintenance facility operated by by the Defendant for more than 60 years, which facility had leeched harmful chemicals onto the Plaintiff’s neighbouring lands. Portions of the Plaintiffs’ action included claims for relief under the rule in Rylands v. Fletcher. The Defendant applied to the case management judge ( a Justice of the Court of Queen’s Bench) to have these claims struck, and was unsuccessful. On appeal, the Defendant was successful in striking the Rylands v. Fletcher claims on the basis that:

(a) there was no factual dispute in respect of the Defendant’s use of the land;

(b) the Plaintiffs had failed to adduce evidence supporting any genuine issue(s) for trial regarding whether the Defendant had brought substances on to the land which were likely to cause mischief; and,

(c) there was no evidence to contradict the Defendant’s evidence in support of the argument that it was not forseeable that the chemicals would cause harm at the time such chemicals were used.

In reaching this decision, (citing Hryniak) the Court emphasized the appropriateness, and increasing utility of summary procedure for purposes of streamlining litigation, and attaining fair and just results in a timely, cost-effective manner (at paragraphs 12 to 15):

Modern civil procedure has come to recognize that a full trial is not always the sensible and proportionate way to resolve disputes […]

[…] Summary judgment is now an appropriate procedure where there is no genuine issue requiring a trial

Ontario R. 20 and Alberta R. 7.3 are both procedures for resolving disputes without a trial (as compared with Alberta’s summary trial procedure which is a form of trial). As in Ontario, viva voce evidence may exceptionally be allowed in chambers applications: R. 6.11(1)(g). New R. 7.3 calls for a more holistic analysis of whether the claim has “merit”, and is not confined to the test of “a genuine issue for trial” found in the previous rules. Since one of the objectives of class proceedings is to provide affordable access to justice, these principles relating to summary judgment are applicable to the class procedure as well.

The theory that disputes eventually “went to trial” was always something of a legal fiction. Even when the court implied that a trial was called for, and declined to grant summary judgment, or declined to strike pleadings, it was well known that trials were a rarity. [Hryniak] Combined Air Mechanical Services Inc. v. Flesch refers several times to the need for a change in culture. In other words, the myth of trial should no longer govern civil procedure. It should be recognized that interlocutory proceedings are primarily to “prepare an action for resolution”, and only rarely do they actually involve “preparing an action for trial”. Interlocutory decisions that can resolve a dispute in whole or in part should be made when the record permits a fair and just adjudication. Combined Air Mechanical Services Inc. v. Flesch rejected the ruling by the Ontario Court of Appeal to the effect that the old test for summary judgment should continue to apply even in the face of the newly amended Ontario rule.

Clearly, there is now significant authority supporting the trend towards dispositive resolution of litigation on a pre-trial basis, whether by summary trial, dismissal application or otherwise.  This shift away from the ‘myth of trial’ represents an opportunity for counsel to present efficient options for early resolution, and put increased pressure on parties to explore reasonable settlement rather than proceed through formal steps in the litigation. While the applicable legal test(s) still require an evidentiary record which ‘permits a fair and just adjudication,’ it seems likely that this new, broader test has expanded well past the prior ‘genuine issue for trial’ limitation. This will no doubt afford broader opportunities for parties to apply for early resolution, and we are encouraged by the development.

* The Masters’ jurisdiction is set out in s. 9 of the Alberta Court of Queen’s Bench Act.  In essence, while Masters have the same jurisdiction as Justices of the Court of Queen’s Bench, such jurisdiction is limited to interlocutory and summary applications where no viva voce evidence presented.  Unless the parties agree to the disposition of a case on Affidavit evidence, Masters are further prohibited from making determinations in respect of disputed questions of fact.