Matt McCarthy of Filion, Wakely draws our attention to a recent Court of Appeal decision, Singh v. Concept Plastics Limited, 2016 ONCA 815.  In this case two employees brought wrongful dismissal suits under the Simplified Procedure, and they then sought summary judgment, which a motions court judge granted them.  An appeal by the employer set aside the summary judgment.

The employer’s position that the time limits on discovery and the prohibition against cross-examination on an affidavit provided by Rule 76.04 prevented it from putting its best foot forward on a summary judgment motion was accepted by the Court of Appeal.   McCarthy summarizes:

“The Court noted that there were significant discrepancies in the evidence with respect to the notice that had been given to all terminated employees. Similarly, there were discrepancies with respect to the evidence around the plaintiffs’ mitigation efforts. These discrepancies went to the heart of the legal matters in dispute and raised serious credibility issues.

“The Court further noted that Rule 76.04 placed significant limitations on Concept’s ability to prove its case. Following its prior decision in Combined Air Mechanical v. Flesch, 2011 ONCA 764, the Court held that a motion judge should generally not grant summary judgment where there is significant conflicting evidence on the key issues confronting them.

“Moreover, the Court found that a motion judge must at the very least demonstrate in their decision that they have considered the constraints of Rule 76.04 and any resulting prejudice upon a respondent in situations such as these. In the instant matter, the Court found that the motion judge had not referred to any such considerations in her decision.”

None of this seems unusual or untoward, so why am I worried? 

What concerns me greatly here is that while the Court of Appeal cited its own decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (CanLII) as to the limits that Rule 76 places it did not even mention or cite as considered the Supreme Court of Canada’s decision when the (cited) ONCA decision was appealed.  The SCC decision [known under a different case name, Hryniak v. Mauldin [2014] 1 SCR 87 (henceforth, “Hryniak” for short)] affirmed the Court of Appeal decision.  But the SCC did more than that: in dismissing the appeal the SCC laid down what is probably the most strongest summary judgment decision ever given by the country’s highest court, mandating a “cultural shift” in how summary judgment is handled by motions courts across Canada.

Some background is needed.  “Summary judgment” (under Rule 20) is where, a party seeks, on motion, an early decision in the case.  Put colloquially, the court is to evaluate the evidence (usually documentary and affidavit), and determine whether the matter can be decided now, rather than waste time on a trial for a case that doesn’t need a trial.

One of my ongoing frustrations regarding litigation in Ontario since I entered law school in the 80s is that there is a predictable loop about how summary judgement is handled, and it goes like this…

• The court system becomes increasingly clogged with cases that go through the full gamut of pleadings, discovery, pre-trial and trial when, in fact, a close examination would show that they could have been and should have been determined much earlier because their outcome was so clear.
• To address the problem, Rule 20 is amended and toughened; there are conferences (including participation from the bench) on the importance of the effective use of the new powers, and the importance of early removal from the system of cases that should not go to trial.
• Many counsel and some judges take the new wording and admonitions to heart and vigorous use is made of summary judgment.  However…
• Other motion judges, and especially appeal judges, start to winnow down the use of summary judgment: one can tartly describe the general rationale of such decisions as “summary judgment is good, yes, we’re all for it, but not here“, and an exception is made.  And…
• The “not here” exceptions get more numerous, and wider in their scope, and within a few short years the bar — again — faces a reality where there is is no point in bringing a summary judgment motion in almost all cases because one isn’t moving through a breach, but rather facing a tall wall of prohibitions.
• In essence, summary judgement once again becomes “all cases go to trial except for the clearest of the most obvious of the most inarguable of cases”.    Rule 20 is once again efficiently sent off to judicial Siberia, rarely to be seen again, and then the court system becomes increasingly clogged with cases (and so on, and so on)…

… and the loop begins anew.

Ted Tjaden and Matthew Karabus in their excellent Advocates’ Quarterly paper (“The Impact of Hryniak v Maudlin on Summary Judgments in Canada One Year Later”) very accurately describe this tendency as “interpretive erosion”.

But in 2014 the SCC radically changed the rules in Hryniak, making it abundantly clear that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”.   “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.”  The above-noted cultural shift “entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial” [emphasis added].

I was pleased and astounded, because Hryniak appeared to break the loop that I’d been watching since the mid-1980s, and did so in arguable, clear, unequivocal, mandotory language.    The Supreme Court specifically rejected the previous (and much weaker) “full appreciation” test set by ONCA in Combined Air.

And now, only two years later, ONCA has released a major decision eroding the applicability of summary judgment, and didn’t even mention Hryniak, or the new mandates and clear wording from the SCC.   One has the very uncomfortable feeling that the Ontario Court of Appeal has chosen to ignore a case that specifically told courts — and specifically their Court — to take a tougher line, and instead it has gone back to the bad old, “yes, except, but, and not here” habits of of loops past.

One specific point: it is rather brazen bit of cheek that the Court of Appeal criticizes the motions judge for “fail[ing] to assess the fairness of deciding this matter by way of summary judgment in the context of the simplified rules procedural constraints under Rule 76.04” when ONCA itself has failed to assess Hryniak and the fairness of significantly restricting movants’ use of Rule 20 in that context.  It bodes ill for the rule of law in Canada when the country’s largest appellate court feels that it can comfortably ignore the Supreme Court of Canada when the SCC tells it something it doesn’t want to hear.

Perhaps Singh v. Plastic Concepts is entirely defensible on the merits, but I worry: it comes perilously close (in my opinion) to stating that Simplified Rules place limits on the parties that are incompatible with the use of  summary judgment.  Indeed the paragraph from Combined Air [para.256] cited in Singh basically states that the test for summary judgment “will generally not be met” in such cases.   In other words, every single lawyer handling a Simplified Rule case in Ontario should assume as a statistical near-certainty that he doesn’t have summary judgment available as an option.  I’d caustically note that if no Rule 76 case is entitled to use Rule 20 then it’s up to the legislature to make it so, not for the bench to make the permitted impermissible.

One additional matter: I should also note that I personally don’t trust and don’t put much stock in the language regarding “credibility”: that was far too often the exact scalpel used to geld Rule 20 in the years before Hryniak.  In the end, such thinking on credibility and complete evidence leads inevitably to the conclusion that only a trial can provide the full information set necessary for a just decision, a view specifically and bluntly rejected in Hryniak.

To put not a fine a point on it, Singh leads one to the suspicion that the Ontario Court of Appeal has revived its own “full appreciation test”, notwithstanding the fact it was specifically rejected by the Supreme Court of Canada.  And it did so by (a) not calling it the full appreciation test, and (b) pretending that Hryniak doesn’t exist.  I deeply hope that Plastic Concepts will appeal this to the Supreme Court of Canada and there be very firmly overturned with language finally burying seemingly unkillable zombie that is “interpretive erosion” of summary judgment.

[This article was edited by the author on 2018-05-29 to correct typos and add commentary.]