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In January 2014, the Supreme Court of Canada emphatically underscored in Hryniak v. Mauldin its recognition that a “culture shift” is required in the civil justice system. The judgment reinforces a growing perception that no longer accepts that the best forum for resolving legal disputes is always the most painstaking procedure—a civil trial.
Trials have become increasingly expensive and protracted. The Court recognized that most Canadians cannot afford to engage in lawsuits when they have been wronged—or to defend themselves if sued. In short, the traditional reliance on a trial to ultimately resolve disputes must now be balanced with a system that recognizes that a trial is not the most realistic alternative for most litigants.
The Court’s stark comments arose on an appeal from an Ontario Court of Appeal decision granting summary judgment to a plaintiff in a civil fraud case. The question was whether the chambers judge ought to have granted judgment on the basis of affidavits as opposed to allowing the case to go forward to a full trial with multiple witnesses and parties. The Supreme Court of Canada upheld the decision to grant summary judgment on the basis that it constituted “a fair and just process” and represented a “proportionate, timely and affordable” procedure for deciding the matter.
The Court recognized the “growing support for alternative adjudication of disputes” and a growing consensus that the traditional approach to “extensive pre-trial processes and the conventional trial no longer reflects the modern reality . . . .” Access to the courts requires use of a process which can be fair and just without the expense and delay of a trial.
If, on a summary trial based on affidavits, a court is able to find the facts necessary to resolve a dispute, and to apply relevant principles, it should do so. The concept of proportionality as between the type of court procedures available for adjudication, and questions of affordability and timing, must play a dominant role in determining whether a fair and just adjudication merits a full trial.
In 2009, British Columbia’s Supreme Court Civil Rules were substantially amended to reflect this principle of proportionality. Rule 1-3 states that the “object [of the Rules] is to secure the just, speedy and inexpensive determination of every proceeding on its merits” having regard to
In an effort to reduce time and costs, the Rules provide for limits on examinations for discovery, fast track litigation, case planning and trial management conferences before trial as well as rules relating to the opinion evidence of experts.
B.C.’s courts, like those in most provinces, have tended to treat the Summary Judgment and Summary Trial processes as shortcuts and exceptions to an underlying view that full trials are the best and preferred method by which to resolve most civil cases. In Hryniak, however, the Supreme Court of Canada has clearly signalled that this business-as-usual thinking should no longer apply—the principle of proportionality, reached by comparing the relative cost savings of summary proceedings over those of a trial, will operate to shift the emphasis in a greater number of disputes towards summary proceedings.
It can be anticipated that this decision will invigorate B.C.’s courts to seek fair and just alternatives to trials, enabling parties to gain fuller access to justice. The Supreme Court of Canada’s message is clear. It may be expected that B.C. courts will be more amenable to summary proceedings in lieu of full trials where a fair and just result is economically achievable. Legal dispute resolution options run the gamut from party-to-party negotiation, mediation, arbitration, summary judgments, summary trials, special cases and, the least preferred option, a full trial. In our view, this “culture shift” will indeed improve access to justice through increased resort to summary and alternative dispute resolution procedures, which are less expensive and offer speedier dispute resolution than full trials.
For more information on the Hryniak case and its importance for encouraging improved access to justice, please contact Derek.
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