Summary Judgments Two Years After Hryniak: Has Anything Changed?

The last six years have seen sweeping changes to the way summary judgments are conducted in Ontario courts. In a previous post, we outlined how summary judgments are being deployed against self-represented litigants. In today’s post, we examine whether or not the hope that summary judgments will increase access to justice by reducing the need for full trials (and the accompanying legal costs) has actually come to fruition. Data from Loom Analytics suggests that despite major rule changes and the landmark Hryniak v. Mauldin Supreme Court decision, there has not yet been an increase in the percentage of summary judgments granted by judges.

In a unanimous 2014 ruling on Hryniak v. Mauldin, the Supreme Court of Canada strongly endorsed a broader and more frequent use of summary judgments in Ontario courts. Citing access to justice concerns, SCC justices called for a significant ‘culture shift’ in the way litigation is conducted across Canada:

"Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.  This shift entails simplifying pre-trial procedures and 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."

Karakatsanis J. (Hryniak v. Mauldin, 2014 SCC 7, para [2])

After the decision was released, there were predictions that the Hryniak decision would result in a sharp rise in the granting of summary judgments.

Two years out, how do these predictions stand up? To answer that question, we’ve run a number of Loom Analytics reports that measure the actual extent of this ‘culture shift’ from the traditional plenary trial.

In establishing some baseline numbers for a year-over-year comparison, we’ve used data published in a 2013 Advocates article that reported Win/Loss rates for summary judgment motions in Ontario:

The above chart shows the number of summary judgment motions granted, partially allowed, and denied in 2012 (as well as in the pre-rule change period of 2009). Considering the SCC’s urgent call for a wide-ranging culture shift, one would expect there would be a significant increase in the number of successful motions for summary judgment post-Hryniak.

As set out in the above table, 56.1% of summary judgment motions brought in 2012 were successful.  By way of comparison, we ran a Loom Analytics Hearing Outcome Report for all post-Hyrniak summary judgment civil decisions in the Ontario Superior Court of Justice. ("Post-Hyrniak" refers to all decisions issued after January 23, 2014)

While our report is confined to civil decisions in the Ontario Superior Court of Justice, it is remarkable how closely the numbers match up with the pre-Hryniak data published in the Advocate. Collectively, post-Hyrniak to present, the percentage of civil summary judgment motions granted in the OSCJ has only been 54.59%.

It is worth noting that in the first two months of 2016, there has been a small jump in the percentage of summary judgments granted (58.54%). This could be a harbinger of things to come, but given that we’re only a few months into 2016, it’s too soon to say whether this will be indicative of a broader trend.

A year ago, Drew Hasselback published an article in the Financial Post looking at the impact of the Hryniak decision on 2014 summary judgment motions. According to Hasselback, not only was there a drop in the actual number of summary judgments brought, but that the percentage of motions granted in 2014 was “virtually identical to the 12 months prior to Hryniak”. Now that 2015 has come to a close and we have a longer period available to assess, it seems that this pattern has remained unchanged.

So far, the hoped-for culture shift has not come to pass, and it’s worth assessing why the SCC’s call for a culture shift has gone unheard -- at least so far.

Given the similarity in win rates for summary judgments pre-Hyrniak and post-Hyrniak, is a summary judgment motion worth the cost? Preparing for a summary judgment is often resource-intensive, and if lost, a summary judgment cost award can be significant. When summary judgments are denied, the resulting trial may be scheduled at a later date than it would’ve been had the motion never been brought. Since summary judgments are only granted just over 50% of the time, are they actually extending the litigation process instead of shortening it?

As we have not completed a detailed analysis of the reasons why summary judgments are not granted, it is difficult to accurately assess why these motions are denied at the current frequency, but we can certainly speculate. It could be that the motions being brought do not meet the standard for summary judgment and do indeed require a full trial. It could also be due to judge reservations about the summary judgment process. Most likely, it’s a combination of both. Does there need to be a clearer standard for when and how to bring summary judgment motions successfully?

If summary judgments are intended to be a path to speedier resolution and greater access to justice, does everyone involved in the process need more clarity on the procedural criteria that needs to be met for successful summary judgment motions?

For some background on the changing summary judgment landscape, a timeline of key milestones in Ontario is below.