Effecting a Culture Shift An Empirical Review of Ontario s Summary Judgment Reforms

Transcription

1 Effecting a Culture Shift An Empirical Review of Ontario s Summary Judgment Reforms by Brooke MacKenzie A thesis submitted in conformity with the requirements for the degree of Master of Laws Faculty of Law University of Toronto Copyright by Brooke MacKenzie, 2016

2 Abstract Effecting a Culture Shift An Empirical Review of Ontario s Summary Judgment Reforms Brooke MacKenzie Master of Laws Faculty of Law University of Toronto 2016 This paper presents an empirical analysis of all reported summary judgment decisions in Ontario between 2004 and 2015, in order to explore whether amendments to the court rules actually achieved their intended effects of improving the efficiency and effectiveness of dispute resolution and making the civil justice system more accessible and affordable. By reviewing trends in the number and outcomes of summary judgment motions throughout the study period, we can conclude that the amendments to Ontario s summary judgment rules have made strides towards their intended goal. We observe an increase in the number of summary judgment motions determined, an increase in the number of summary judgment motions granted, and, broadly, an increase in the proportion of successful summary judgment motions since the reforms. The data analyzed in this study demonstrate that the culture shift promoted by the Supreme Court of Canada following the implementation of the new rule is underway. ii

3 Acknowledgments I wish to thank Professor Albert Yoon for his thoughtful guidance in the preparation of this paper, as well as Professors Anthony Niblett and Andrew Green for their helpful comments. Peter Wells of McMillan LLP was most helpful in providing the data collected for his paper on summary judgment reforms with Adrienne Boudreau, It Was Déjà Vu All Over Again, and I am also grateful to Stephen Ross and Nathaniel Dillon-Smith for providing a copy and discussing with me their paper A Real Culture Shift Post-Hryniak?. Finally, I would like to thank Jonathan Morris-Pocock who, in addition to being a supportive husband, developed a software program to automate a great deal of the data collection and data entry required for this project. iii

4 Table of Contents ACKNOWLEDGMENTS...III TABLE OF CONTENTS... IV LIST OF TABLES... V LIST OF FIGURES... VI LIST OF APPENDICES... VII INTRODUCTION...1 BACKGROUND: RULES, REFORM PROPOSALS, AND AMENDMENTS RULE 20: THE HISTORY OF SUMMARY JUDGMENT IN ONTARIO THE OSBORNE REPORT AMENDMENTS TO THE RULES OF CIVIL PROCEDURE IN COURTS INTERPRETATION AND USE OF AMENDED RULE ONTARIO SUPERIOR COURT: KEY DECISIONS IN ONTARIO COURT OF APPEAL: COMBINED AIR AND THE FULL APPRECIATION TEST SUPREME COURT OF CANADA: HRYNIAK AND THE CULTURE SHIFT LITERATURE REVIEW: COMMENTARY ON AMENDMENTS AND THE HRYNIAK CULTURE SHIFT EMPIRICAL REVIEW OF SUMMARY JUDGMENT DECISIONS IN ONTARIO ( ) GOALS OF STUDY METHODOLOGY Source of data (judgments) Method of sorting and coding judgments Notes respecting the comprehensiveness of the dataset NUMBER OF MOTIONS FOR SUMMARY JUDGMENTS RENDERED NUMBER OF MOTIONS FOR SUMMARY JUDGMENT GRANTED PROPORTION OF MOTIONS FOR SUMMARY JUDGMENT GRANTED OTHER FINDINGS Self-represented plaintiffs and summary judgment motions Subsets of the Superior Court: The Commercial List & Masters Prevalence of cross-motions for summary judgment ANALYSIS & DISCUSSION SUMMARY CONCLUSIONS Number of summary judgment motions decided Number of summary judgment motions granted Proportion of summary judgment motions granted Self-represented litigants Masters vs. judges Cross-motions for summary judgment LESSONS FOR FUTURE CIVIL JUSTICE REFORM QUESTIONS FOR FUTURE STUDY CONCLUSION BIBLIOGRAPHY APPENDICES iv

5 List of Tables Table 1: Number of summary judgment motions granted, partially granted, and dismissed, by year of judgment ( ) Table 2: Proportion of summary judgment motions granted, partially granted, and dismissed, by year of judgment ( )...44 Table 3: Number and outcomes, and success rates of summary judgment motions brought by a represented party against a self-represented party ( ) Table 4: Number and outcomes of summary judgment motions brought in actions on the Commercial List ( ) Table 5: Number and outcomes of summary judgment motions brought in actions on the Commercial List ( ) Table 6: Number of summary judgment motions where at least one responding party filed a cross-motion for summary judgment, by year of judgment ( )...54 Table 7: Outcomes of summary judgment motions where at least one responding party filed a cross-motion for summary judgment, by year of judgment ( )...55 v

6 List of Figures Figure 1: Distribution of appeals of unreported summary judgment motions by year, compared to distribution of total appeals of summary judgment motions by year...35 Figure 2: Number of summary judgment motions in Ontario, by year decision was rendered ( )...36 Figure 3: Number of summary judgment motions decided in Ontario, by year motion was heard ( ) Figure 4: Number of summary judgment motions decided in Ontario by year and quarter motion was heard ( ) Figure 5: Number of new civil proceedings initiated and total number of civil hearings in the Ontario Superior Court, by calendar year and MAG fiscal year (April 1- March 31), respectively. Source: MAG Court Services Division Annual Reports and data tables (see footnote 161) Figure 6: Number of summary judgment motions granted or partially granted, by year of judgment ( )...43 Figure 7: Proportion of summary judgment motions granted, partially granted, and dismissed (periods in )...45 Figure 8: Proportion of summary judgment motions granted, partially granted, and dismissed, by year of judgment ( )...46 Figure 9: Number of summary judgment motions involving a self-represented party, by year of judgment ( )...49 Figure 10: Number of summary judgment motions where at least one responding party filed a cross-motion for summary judgment, by year of judgment ( )...54 vi

7 List of Appendices Appendix A: Full text of Rule 20 as it existed prior to the 2010 revisions. Appendix B: Full text of Rule 20 following the amendments effective January 1, Appendix C: Guidelines for excluding and coding cases in dataset. Appendix D: Excel spreadsheet containing complete dataset and worksheets used to make calculations in analysis. vii

8 Introduction Canadians have been concerned with the inefficiencies of the justice system for decades. In 2010, numerous amendments were made to the Ontario Rules of Civil Procedure in the latest significant effort to reform court procedure to improve the efficiency and effectiveness of civil dispute resolution in the civil justice system. Among these amendments were changes to Rule 20, the rule respecting summary judgment, which were designed to make it easier for Ontarians to achieve a final disposition of their dispute without the necessity of a lengthy and expensive trial. No measure was put in place, however, to see whether the goals of this reform were achieved. This paper explores the question of whether the changes to Ontario s summary judgment rule in 2010 actually achieved their intended effects. To do so, it conducts a detailed empirical analysis of all reported summary judgment decisions between 2004 and 2015 the six years prior to and following the implementation of the new Rule 20 on January 1, By reviewing trends in the number of summary judgment motions determined over this period and the outcomes of such motions, we seek to determine whether and how the 2010 reforms to summary judgment procedure affected litigants and judges behaviour, and assess if any lessons learned through the latest slate of reforms can be applied to further improve the efficiency of civil dispute resolution moving forward. Part II of this paper provides a background on Rule 20 s previous iterations and their judicial interpretation, proposals for its reform, and the specific amendments made in Part III discusses courts interpretation of the amended Rule 20 following its implementation on January 1, 2010, including two key appellate decisions: Combined Air Mechanical Services v Flesch, a 2011 decision of the Ontario Court of Appeal; and Hryniak v Mauldin, a decision of a unanimous Supreme Court of Canada in January, Part IV reviews commentary on the summary judgment amendments, focusing on previous smaller-scale attempts to empirically assess the effects of the new Rule 20. Part V first discusses this study s methodology before reporting and examining the results of the analysis of the number and outcome of summary judgment motions in Ontario from Part VI reviews the conclusions drawn from the analysis and discusses lessons learned from the Rule 20 amendments that may be applied to future civil justice reform, as well as possible areas for future study to continue to assess and improve summary judgment procedures in Canada. Part VII concludes. 1

9 Background: Rules, reform proposals, and amendments 2.1 Rule 20: The history of summary judgment in Ontario Prior to the introduction of the Rules of Civil Procedure 1 in 1985, the former Rules of Practice and Procedure 2 provided for the possibility of summary judgment. Rule 58(2) permitted the court to grant judgment before trial for the plaintiff where the court is satisfied that the defendant has not a good defence to the action or has not disclosed such facts as may be deemed sufficient to entitle him to defend the action. 3 Notably, this rule pertained to motions for judgment brought by plaintiffs, and was confined to cases asserting particular claims, such as for a debt or liquidated demand. 4 The Court of Appeal made clear in Arnoldson y Serpa v. Confederation Life Assn. 5 that the test for granting judgment pursuant to rule 58(2) was strict. In setting aside an order granting judgment in favour of the plaintiff, the Court of Appeal held: We are all of the view that on an application of this nature the power to direct that judgment be summarily signed should be exercised with great caution and with the most scrupulous discretion. The plaintiff must make out a case which is so clear that there is no reason for doubt as to what the judgment of the Court should be if the matter proceeded to trial. 6 Litigants ability to obtain summary judgment was thus quite limited prior to The introduction of the Rules of Civil Procedure and Rule 20, however, made summary judgment available to both plaintiffs and defendants, in the context of any action, at any time following the 1 RRO 1990, Reg 194 [Rules]. 2 RRO 1980, Reg 540 [Rules of Practice]. 3 Rules of Practice, r 58(2). 4 The Honourable Mr. Justice John W. Morden, An Overview of the Rules of Civil Procedure of Ontario, (1984) 5:3 Adv Q 257 at 273; see also Rules of Practice, supra note 2, r 33 & (1974) 3 OR (2d) 721 (Ont CA), [1974] OJ No 1905 [Arnoldson]. 6 Arnoldson, supra note 5 at para 6 [emphasis added]. See also Robert J van Kessel, Dispositions Without Trial, Second Edition, (Markham ON: LexisNexis Canada Inc, 2007) at [van Kessel]. 2

10 3 exchange of pleadings. 7 The text of Rule 20 made clear that the new provision was to be interpreted more broadly; in fact, rule provided that the court shall grant summary judgment where it is satisfied that there is no genuine issue for trial with respect to a claim or defence. 8 The full text of Rule 20 as it existed prior to the 2010 revisions is included at Appendix A. Rule 20 was initially interpreted in an expansive manner. 9 However, the meaning of no genuine issue for trial remained elusive. A few years after the 1985 rule was introduced, courts in Ontario had generally distilled the standard to two principles: 1. Where there are controverted issues of fact involving the credibility of witnesses, it could not be said that there are no genuine issue for trial ; summary judgment should not be granted. The trial is the only proper forum for the resolution of disputed facts through the hearing and testing of viva voce evidence; 2. Where there are no disputed facts in issue, the court must nevertheless be satisfied that on the evidence there is no basis on which a reasonable trier of fact, properly instructed, could find in favour of the responding party before summary judgment should be granted. 10 The limits of the motions judge s role, particularly in assessing credibility, became an important factor in constraining the interpretation of Rule 20 and the use of summary judgment to resolve civil disputes. In Masciangelo v Spensieri, 11 Justice Doherty observed: The suitability of a summary procedure where the dispute is fact bound raises difficult problems. Where the outcome of a law suit hinges on the assessment of credibility, a trial in which evidence is called and the competing 7 Rules, supra note 1, r See also Kenneth J Kelertas, The Evolution of Summary Judgment in Ontario, (1999) 21:3 Adv Q 265 at [Kelertas]. 8 Rules, supra note 1, r See T. Walsh and L. Posloski, Establishing a Workable Test for Summary Judgment: Are We There Yet?, in T. L. Archibald and R. S. Echlin, eds., Annual Review of Civil Litigation 2013 at 426, citing, e.g., Vaughan v. Warner Communications, Inc. (1986), 56 OR (2d) 242 (HCJ). 10 Alvi v Lal (1990), 13 RPR (2d) 302 at , [1990] OJ No 739 (Ont HCJ) per Then J [emphasis in original]. The evolution of the no genuine issue for trial standard is explained in detail in Kelertas, supra note 7, from which I have drawn for this summary. 11 (1990), 1 CPC (3d) 124, [1990] OJ No 1429 (Ont HCJ).

11 4 stories are told and challenged before the trier of fact has traditionally been viewed as the ideal forum. This is so, not only because the trier of fact has the advantage of hearing and seeing the witnesses, but also because the parties are given their day in court during which they have the opportunity to present their entire case, face their judge, and tell their story. The quality of justice is measured not only by the accuracy of the result reached but by the way that result is reached. That quality may suffer if litigants are judged unworthy of belief by someone who has never seen them or heard them, but instead has examined only written material. 12 It is particularly interesting to note Justice Doherty s emphasis on litigants perceptions of the quality of justice they received (i.e. their ability to have their day in court ), rather than a motions judge s ability to assess credibility effectively on a written record. Notably, he specifically held that he would not be able to accept the respondent s sworn evidence were he trying the case on the record before him. 13 Nevertheless, Justice Doherty concluded that one s credibility is a genuine issue for trial, holding, Arguments which involve the central facts of the case and turn on judgments as to credibility should not be resolved on a Rule 20 motion. 14 Ontario courts appeared to turn towards a less stringent standard for granting summary judgment with Pizza Pizza Ltd v Gillespie. 15 In Pizza Pizza, Justice Henry rejected the notion that the question on summary judgment was whether the respondent could not possibly succeed at trial; rather, he held, the court, in taking a hard look at the merits, must decide whether the case merits reference to a judge at trial. 16 He emphasized that parties must put their best foot forward on the motion by filing sworn affidavit evidence in support of their position, and that the motions judge may draw common-sense inferences from the evidence and look at the overall credibility of each party s position to determine if the case is so doubtful that it does not deserve consideration at trial Ibid at Ibid. 14 Ibid at (1990), 75 OR (2d) 225 (Gen Div). 16 Ibid at Ibid, at 238.

12 5 In Irving Ungerman Ltd v Galanis, the Court of Appeal helpfully explained the intended role of summary judgment as follows: A litigant's day in court, in the sense of a trial, may have traditionally been regarded as the essence of procedural justice and its deprivation the mark of procedural injustice. There can, however, be proceedings in which, because they do not involve any genuine issue which requires a trial, the holding of a trial is unnecessary and, accordingly, represents a failure of procedural justice. In such proceedings the successful party has been both unnecessarily delayed in the obtaining of substantive justice and been obliged to incur added expense. Rule 20 exists as a mechanism for avoiding these failures of procedural justice. 18 Writing for the majority in Ontario Ltd v Ontario Jockey Club, Justice Osborne succinctly described the standard to be applied by a motions judge on a motion for summary judgment, as it then was, stating: The motions judge hearing a motion for summary judgment is required to take a hard look at the evidence in determining whether there is, or is not, a genuine issue for trial. The onus of establishing that there is no triable issue is on the moving party, in this case the purchaser. However, a respondent on a motion for summary judgment must lead trump or risk losing. Generally, if there is an issue of credibility which is material, a trial will be required. 19 Although these decisions appeared to suggest that motions judges had some leeway to evaluate the evidence put before them to determine if a genuine issue for trial existed on a motion for summary judgment, two later decisions of the Court of Appeal reined in the standard. In Aguonie v Galion Solid Waste Material Inc, 20 the motions judge had granted summary judgment to a defendant on the basis that the plaintiff filed her claim after the two-year limitation period had elapsed, but the Court of Appeal overturned this result. The Court of Appeal held that in granting summary judgment in the circumstances, the motions judge had misconstrued the role of a 18 Irving Ungerman Ltd v Galanis (1991), 4 OR (3d) 545, [1991] OJ No 1479 [Ungerman] at para 20 [emphasis added] Ontario Ltd v Ontario Jockey Club (1995), 21 OR (3d) 547 (CA) at 557 [citations omitted]. 20 (1998), 38 OR (3d) 161 (CA), rev g (1997), 33 OR (3d) 615 (Gen Div) [Aguonie].

13 6 motions court judge hearing a motion for summary judgment and exceeded his role. 21 Writing for the Court, Borins J held: In ruling on a motion for summary judgment, the court will never assess credibility, weigh the evidence, or find the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility, weighing evidence, and drawing factual inferences are all functions reserved for the trier of fact. 22 In a later decision, Dawson v Rexcraft Storage and Warehouse Inc, 23 the Court of Appeal elaborated on its holding in Aguonie, stating: it is necessary that motions judges not lose sight of their narrow role, not assume the role of a trial judge, and, before granting summary judgment, be satisfied that it is clear that a trial is unnecessary. 24 Writing for the Court in Dawson, Justice Borins again emphasized the preferred approach: some motions judges have come to regard a motion for summary judgment as an adequate substitute for a trial. In my view, this is incorrect and does not reflect the true purpose of Rule The Osborne Report Although summary judgment was generally available to civil litigants following the 1985 Rules, the Ontario Court of Appeal s interpretation of Rule 20 granted limited scope to motions judges in determining whether there was no genuine issue for trial. As Professor Janet Walker has explained, Although this interpretation remained in place for some time, by 2006 it had become clear that it was not serving the civil justice system well. 26 In June 2006, Michael Bryant, then Ontario s Attorney General, asked the Honourable Coulter Osborne, the former Associate Chief Justice of Ontario, to lead the Civil Justice Reform Project 21 Ibid at 168 & Ibid at 173 [emphasis added]. 23 (1998), 164 DLR (4 th ) 257, [1998] O.J. No (CA) [Dawson cited to OJ]. 24 Ibid at para Ibid at para Janet Walker, Summary Judgment Has its Day in Court, (2012) 37 Queen s LJ 697 at 702 [Walker].

14 7 ( CJRP ). As part of this mandate, Justice Osborne was asked to deliver recommendations for action to make the civil justice system more accessible and affordable for Ontarians. 27 The CJRP terms of reference included summary judgment on its short list of possible areas of reform, and emphasized that Justice Osborne s reform proposals should provide meaningful results in enhancing access to justice for Ontarians. 28 Interestingly, the CJRP mandate letter recognized that rule and other regulatory reform alone might not adequately respond to problems in the system, and suggested that [w]ays to foster cultural change among the bench and bar should be considered. 29 The CJRP prepared and distributed a consultation paper canvassing ideas for reform and solicited comments from the bar associations, lawyers, judges, and the public. It also held consultation meetings throughout the province and assembled advisory committees of members of the bar and bench with various perspectives to provide advice in assessing reform options. 30 In November, 2007, Justice Osborne submitted the CJRP report (the Osborne Report ), providing numerous recommendations for civil justice reform. 31 Summary judgment was one of many areas of proposed reform discussed in the Osborne Report. 32 During the consultation process, the CJRP discussed whether to change the no genuine issue for trial test, or broaden the power of a motions judge on a summary judgment motion, or both Honourable Coulter A Osborne, QC, Civil Justice Reform Project: Summary of Findings and Recommendations, November 2007, online: Ontario Ministry of the Attorney General, (retrieved October 5, 2015), at Appendix A & B [Osborne Report]. 28 Ibid at Appendix A. 29 Ibid. 30 Ibid at Ibid at ii. 32 The report also recommended reform to the Small Claims Court and simplified procedure process and jurisdiction; the discovery process; the process for proffering expert evidence; and pre-trial conferences, among others. 33 Osborne Report, supra note 27 at 32.

15 8 The Osborne Report highlighted the general agreement amongst the bench and bar that the Court of Appeal s view of the scope of motion judges authority was too narrow, and that Rule 20 was not working as intended. 34 It further noted anecdotal reports from the bar that few summary judgment motions were brought at the time. The Report noted that the bar s report in this regard was confirmed by statistics from the Ministry of the Attorney General ( MAG ), stating that [i]n , summary judgment motions were commenced in only 642 of Ontario s 63,251 Superior Court civil cases (1%). 35 Unfortunately, the Report provides no context for this statistic: there is no information as to how the data was gathered; whether the 63,251 civil cases at issue were all extant cases in the Ontario civil justice system, or those commenced within a certain time period; whether 642 summary judgment motions referred to those commenced in the term or during the life of those cases; or how many of the 642 summary judgment motions commenced were eventually heard and decided by the Court. The CJRP consultation revealed some debate amongst the bench and bar as to the preferable threshold for granting summary judgment: some argued the no genuine issue for trial test should be reformed; others suggested that it was not the test itself, but the courts interpretation of it, that limited Rule 20 s effectiveness, and others still said the test ought to remain a difficult threshold so to ensure meritorious claims and defences are not disposed too early by way of orders on summary judgment. 36 Justice Osborne considered the summary judgment test used in England and Wales, which provides that judgment may be granted if the claimant or defendant has no real prospect of success. 37 He observed that while such a test would theoretically reduce the threshold for granting summary judgment, the courts in England had effectively limited the impact of the rule in a manner similar to the Court of Appeal for Ontario. 38 Justice Osborne thus concluded that it 34 Ibid at Ibid at fn Osborne Report, supra note 27 at Ibid at 34, citing the England and Wales Civil Procedure Rules, rule Ibid at

16 9 was not the no genuine issue for trial test that limited the effectiveness of summary judgment, but the restrictions to motions judges powers on a summary judgment motion. 39 Accordingly, the Osborne Report recommended that the test under Rule 20 remain the same, but that a motions judge be expressly permitted to weigh evidence, draw inferences, and evaluate credibility on a summary judgment motion (i.e. do precisely that which the Court of Appeal had held a motions judge cannot do). 40 Moreover, he proposed that where the court cannot determine the motion without viva voce evidence on certain issues, the Rules should provide for a minitrial where witnesses can testify on relevant issues in a summary fashion, without having to proceed to a full trial. 41 The Osborne Report further recommended that the presumption of ordering substantial indemnity costs against a moving party who is unsuccessful in obtaining summary judgment ought to be eliminated, due to concerns that it deterred parties from bringing Rule 20 motions. Acknowledging the need to deter parties from using Rule 20 as a delay tactic, Justice Osborne suggested that substantial indemnity costs should be awarded by motions judges against parties who act in bad faith, but ought not be presumptive. 42 Finally, Justice Osborne proposed that a mechanism for summary trials (similar to a procedure that had been successful in British Columbia) should be introduced to provide a further tool for the final disposition of certain cases without a full trial. He proposed that Ontario import British Columbia s rule 18A, 43 which allowed a court to grant judgment based on documentary evidence (including affidavits, transcripts of examinations for discovery, expert opinion, and crossexaminations thereof) or, if unable to grant judgment on documentary evidence alone, make various orders to expedite the trial. 44 The Osborne Report concluded that a summary trial 39 Ibid at Ibid. 41 Ibid at Ibid at Supreme Court Rules, BC Reg 221/90, r 18A. The BC Rules have since been replaced by BC Reg 168/2009, which provides for summary trials in Rule Osborne Report, supra note 27 at 38.

17 10 procedure would improve proportionality in civil justice, and reduce the cost and delay inherent in civil dispute resolution Amendments to the Rules of Civil Procedure in 2010 In early 2008, following the release of the Osborne Report, the Attorney General conducted a further consultation with judges, lawyers, and the public to discuss the Report s recommendations. The recommendations were also considered by the Civil Rules Committee, which is made up of lawyers, judges, and MAG representatives, and empowered by the Courts of Justice Act 46 to make the rules for civil courts. 47 In 2008 and 2009, Ontario enacted regulations to amend the Rules of Civil Procedure to effect some of the proposed reforms. The reforms were to come into effect on January 1, The amendments modified dozens of court rules. In addition to the summary judgment reforms (described below), the amendments: Narrowed the scope of discovery; Required parties to agree on a written discovery plan prior to exchanging documents; Made pre-trial conferences mandatory for all civil actions; Increased the monetary limit for simplified procedure actions and for the Small Claims Court; Established various requirements for expert witnesses and the content of expert reports; Modified the timelines for service of motion materials; and Imposed an overarching principle of proportionality. 49 Rule 20 was amended to read as follows: 45 Ibid at RSO 1990, c C.43 [CJA]. 47 Ontario Ministry of the Attorney General, What s New? Changes to the Rules of Civil Procedure, online: Ontario Ministry of the Attorney General, (retrieved October 5, 2015). 48 Ibid. 49 Ibid. See also O Reg 438/08 and O Reg 394/09.

18 (2) The court shall grant summary judgment if, (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence. (2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation The court may fix and order payment of the costs of a motion for summary judgment by a party on a substantial indemnity basis if, (a) the party acted unreasonably by making or responding to the motion; or (b) the party acted in bad faith for the purpose of delay. 50 The full text of Rule 20 following the 2010 amendments is included at Appendix B. The changes, described below, generally reflected the recommendations in the Osborne Report, with some exceptions and modifications. First, the test for granting summary judgment was changed from no genuine issue for trial to no genuine issue requiring a trial. 51 Interestingly, Justice Osborne had specifically 50 Rules, supra note 1, r Ibid [emphasis added].

19 12 recommended that the no genuine issue for trial test not be amended; he was of the view that it was the limits on motions judges powers on summary judgment motions, rather than the test for granting such motions, that limited the effectiveness of Rule The phrase no genuine issue requiring a trial appears to have derived from the Ontario Court of Appeal s decision in Ungerman. 53 Second, motions judges were granted the power to weigh evidence, evaluate credibility, and draw reasonable inferences from evidence, as proposed by Justice Osborne. Although his proposal for a summary trial mechanism was not adopted, Justice Osborne s suggestion that a mini-trial could be directed to resolve the issues on summary judgment was accepted in part: pursuant to r (2.2), judges can order the presentation of oral evidence on a summary judgment motion, to determine whether there is a genuine issue requiring a trial. Notably, these expanded powers were conferred on motions judges, but not masters. Finally, the amended Rules implemented Justice Osborne s recommendation respecting costs: on a failed summary judgment motion, costs will presumptively be determined on a partial indemnity basis, although substantial indemnity costs may be ordered where a party acts unreasonably or in bad faith. The amended summary judgment rules took immediate effect on January 1, 2010; the new standard and powers applied to all summary judgment motions, regardless of whether the motion was filed before or after that date Osborne Report, supra note 27 at See text accompanying note 18; see also Combined Air Mechanical Services Inc v Flesch, 2011 ONCA 764 at note Onex Corp v American Home Assurance (2009), 100 O.R. (3d) 313.

20 13 Courts interpretation and use of amended Rule Ontario Superior Court: Key decisions in In the months following the implementation of the amended Rule 20, motions judges in Ontario developed divergent approaches in applying the revised test and their new powers. 55 In Healey v Lakeridge Health Corp, Justice Perell held: Semantically, there is not much difference between no genuine issue for trial and no genuine issue requiring a trial. 56 He acknowledged, however, that the new powers granted to motions judges by Rule 20.04(2.1) was a statutory reversal of the case law, and that in that context the reframing of the test was intended to make summary judgment more readily available. 57 Ultimately, using his enhanced powers to find facts permitted Justice Perell to grant the summary judgment motion brought by one of the defendants. 58 In Lawless v Anderson, Justice D.M. Brown highlighted that the New Rule 20 introduced a radical change by arming motions judges with greater powers to review evidence, vest[ing] in a motion judge the powers typically exercised by a trial judge. 59 Justice Brown observed that motions judges were no longer confined to identifying whether there existed a dispute of material fact and suggested that, as a practical matter, motions judges will likely be better able to determine issues of discoverability on summary judgment motions premised on a lapsed limitation period. 60 This is precisely what occurred in Lawless: Justice Brown s assessment of the record allowed him to find the necessary facts to conclude that no genuine issue for trial 55 See Walker, supra note 26 at 713. This section has also benefitted from the discussion of cases applying the amended Rules in Carole J Brown & Steven Kennedy, Changing the Rules of the Game: Rewinding the First Ten Months of the New Rules of Civil Procedure, (2011), 37 Adv Q 443 [Brown & Kennedy]. 56 Healey v Lakeridge Health Corp, 2010 ONSC 725 at para 20 [Healey], aff d 2011 ONCA Ibid at paras Ibid at paras Lawless v Anderson, 2010 ONSC 2723 at para Ibid at paras 19 & 22.

21 14 existed as to when the plaintiff discovered her claim, and he granted summary judgment in favour of the defendant. 61 Justice Pepall highlighted a key change under the new Rule 20 when he held that implicit in motions judges new powers to weigh evidence, evaluate credibility, draw reasonable inferences, and order oral evidence is the ability to make findings of fact. 62 Not all Superior Court judges, however, recognized the significance of the Rule 20 amendments. In Cuthbert v TD Canada Trust, Justice Karakatsanis (as she then was) held that, despite the new rules, it is not the role of the motions judge to make findings of fact for the purpose of deciding the action on the basis of the evidence presented on a motion for summary judgment. 63 In both Cuthbert and Hino Motors Canada v Kell, Justice Karakatsanis held that the test for summary judgment has not changed, citing the articulation of the test as whether there is a genuine issue of material fact that requires a trial for its resolution from the Court of Appeal s decision in Ungerman in In Optech Inc v Sharma, Justice Brown added to his comments on the amended Rule 20 in Lawless by suggesting a possible approach to summary judgment motions. He proposed that in order to assess whether a final disposition could be granted on a summary judgment motion (including through a mini-trial using the power to order viva voce evidence under Rule 20.04(2.2)), motions judges should ask themselves the question How much more would I need to decide this case?. 65 It is clear that motions judges in Ontario had not agreed on the appropriate interpretive approach of the new Rule 20 in the first two years following the amendments. A unified standard would 61 Ibid at para Canadian Premier Life Insurance Company v Sears Canada Inc, 2010 ONSC 3834 at para Cuthbert v TD Canada Trust, 2010 ONSC 830 at para 11 [Cuthbert]. 64 Hino Motors Canada v Kell, 2010 ONSC 1329 at para 7 [Hino Motors] & Cuthbert, supra note 63 at para 11, citing Ungerman, supra note Optech Inc v Sharma, 2011 ONSC 680 at paras

22 15 not appear until the Court of Appeal announced its fresh approach to the interpretation and application of the amended Rule 20 in Combined Air Mechanical Services Inc v Flesch Ontario Court of Appeal: Combined Air and the full appreciation test In Combined Air Mechanical Services v Flesch ( Combined Air ), the Court of Appeal observed that since the amendments to Rule 20, it has become a matter of some controversy and uncertainty as to whether it is appropriate for a motion judge to use the new powers conferred by the amended Rule 20 to decide an action on the basis of the evidence presented on a motion for summary judgment. 67 To address this, the Court convened a five-judge panel to consider appeals of five different summary judgment motions (both granting and denying summary judgment) decided under the amended Rule 20, 68 with the express purpose of providing some clarification and guidance to the bench and bar. 69 In addition to hearing from counsel for the parties, the Court appointed five amicus curae representing MAG, the Ontario Bar Association, and other stakeholders to provide submissions on how the amended rule ought to be interpreted and applied. 70 In unanimous reasons by the Court, the Court of Appeal held that the amended Rule 20 permits a motions judge to grant summary judgment to dispose of an action where he or she is satisfied that by exercising the powers that are now available on a motion for summary judgment, there is no factual or legal issue raised by the parties that requires a trial for its fair and just resolution. 71 The Court accepted that the new rule made clear that the restrictions formerly imposed on motions judges, articulated by the Court of Appeal in Aguonie and Dawson, were no ONCA 764 at para 35 [Combined Air]. 67 Combined Air, supra note 66 at para Appeals from Combined Air v Flesch, 2010 ONSC 1729 (per Belobaba J); Bruno Appliance v Cassels Brock & Blackwell LLP, 2010 ONSC 5490 (per Grace J) (addressing two parties separate motions); 394 Lakeshore Oakville Holdings Inc v Misek, 2010 ONSC 600 (per Perell J); and Parker v Casalese, 2010 ONSC 5636 (per Kruzick, Swinton, and Harvison Young JJ for the Ontario Divisional Court). 69 Combined Air, supra note 66 at para Ibid at para Ibid at para 37.

23 16 longer applicable, and that the amendments were meant to introduce significant changes in the manner in which summary judgment motions are to be decided. 72 The Court emphasized, however, that the new rule was intended to eliminate unnecessary trials not to eliminate all trials. 73 Accordingly, it listed three types of cases that will generally be amenable to summary judgment: (1) Where a claim or defence is shown to be without merit or to have no chance of success ; 74 (2) Where the parties agree it is appropriate to determine the action by way of a motion for summary judgment (although, even in such a case, the judge will retain the discretion to refuse summary judgment where the test is not met, notwithstanding the parties agreement); 75 and (3) Where the trial process is not required in the interest of justice. 76 In the Court of Appeal s view, the new test for Rule 20 expanded the types of cases amenable to summary judgment from the first two categories to also include the third. Discussing the new wording of the test (from no genuine issue for trial to no genuine issue requiring a trial ), the Court held: This change in language is more than mere semantics. The prior wording served mainly to winnow out plainly unmeritorious litigation. The amended wording, coupled with the enhanced powers under rule 20.04(2.1) and (2.2), no permit the motion judge to dispose of cases on the merits where the trial process is not required in the interest of justice Ibid at para Ibid at para Ibid at para 42, citing Canada (Attorney General) v Lameman, 2008 SCC 14 at para Ibid at para Ibid at para Ibid at para 44.

24 17 The Court proceeded, however, to discuss the aspects of the trial process that render a trial necessary for the fair and just resolution of many cases. It highlighted a trial judge s privileged position, participation in the trial dynamic, and total familiarity with the evidence, 78 noting that a trial judge sees witnesses testify, follows the trial narrative, asks questions when in doubt as to the substance of the evidence, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses. 79 The Court concluded that a trial judge s participatory role provides a greater assurance of fairness in the process for resolving a dispute. 80 With this in mind, the Court of Appeal held that a motion judge must ask the following question on a motion for summary judgment: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial? 81 The Court further held that in cases that call for multiple findings of fact on the basis of evidence emanating from a number of witnesses and a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process 82 in such cases, the motions judge simply cannot achieve the full appreciation of the evidence an issues that is required, and the interests of justice will require a trial. 83 The Court emphasized that achieving familiarity with the total body of evidence in the motion record is not the same as fully appreciating the evidence. A motions judge must consider whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words and without the assistance of counsel as the judge examines the record in chambers Ibid at para 46, citing R.D. Gibbens, "Appellate Review of Findings of Fact" (1992), 13 Adv Q 445, at Ibid at para Ibid. 81 Ibid at para 50 [emphasis added]. 82 Ibid at para 51 [emphasis added]. 83 Ibid. 84 Ibid at paras

25 18 The Court of Appeal suggested that the full appreciation test might be met in document-driven cases with limited testimonial evidence, in cases with limited contentious factual issues, and in cases where the record can be supplemented to the requisite degree at the motion judge s direction by hearing oral evidence on discrete issues. 85 However, the Court carefully highlighted the limits on motions judges discretion to order oral evidence under rule 20.04(2.2), noting that, despite the convenient short form of mini trial used for this subrule, summary judgment motions are not a form of summary trial. Rather, oral evidence may be ordered on discrete issues, to assist the motions judge in making the determination of whether a trial is required. 86 In summarizing the approach to be applied on summary judgment, the Court of Appeal held that before using the new powers to weigh evidence, evaluate credibility, and draw inferences, a motions judge must apply the full appreciation test and be satisfied that the interests of justice do not require that those powers be exercised only a trial. 87 In applying the approach to the appeals before it, the Court listed various hallmarks of the types of action which are inappropriate for summary judgment and require a trial: - A voluminous motion record; - Evidence from many witnesses; - Different theories of liability advanced against different defendants; - Numerous findings of fact are required; - Credibility determinations lie at the heart of the dispute; - Conflicting evidence on key issues from major witnesses; and - An absence of documentary evidence against which to assess witnesses credibility. 88 It is clear that the Court of Appeal carefully considered differing views about the appropriate interpretation of the new Rule 20, particularly by rendering its decision on five different matters 85 Ibid at para Ibid at paras Ibid at para Ibid at para 148.

26 19 and hearing further submissions from advocates from other interested parties. In the result, Combined Air created a unified standard to be applied across Ontario on motions for summary judgment. The Court s reasons, however, emphasized the advantages of resolving disputes at trial rather than on a summary judgment motion, and arguably sought to circumscribe motions judges powers 89 just as was done by the Court of Appeal in Aguonie and Dawson under the former Rule Supreme Court of Canada: Hryniak and the culture shift Robert Hryniak, one of the parties in the Combined Air appeals, appealed the Court of Appeal s determination that the motions judge in his case had not erred in granting summary judgment against him. His appeal was heard by the Supreme Court of Canada on March 23, 2013, 90 alongside a companion appeal brought by Bruno Appliance and Furniture (another party in the Combined Air appeals). 91 Both cases related to allegations of civil fraud against Hryniak. In an interesting turn of events, Justice Karakatsanis who had issued two decisions arguably minimizing the impact of the Rule 20 amendments when she sat on the Ontario Superior Court 92 authored the Supreme Court s unanimous decision in Hryniak. The Court began its reasons by acknowledging that many Canadians simply cannot afford to sue when they are wronged, or defend themselves when they are sued, because trials have become increasingly expensive and protracted. 93 Such circumstances threaten the rule of law and hinder the development of the common law, and have resulted in increased recognition that a culture shift is required in order for Canadians to have timely and affordable access to the civil justice system. 94 This culture shift, the Court held, requires: 89 See, e.g., The discretion to order oral evidence pursuant to rule 20.04(2.2) is circumscribed and cannot be used to convert a summary judgment motion into a trial The discretion to direct the calling of oral evidence on the motion amounts to no more than another tool to better enable the motion judge to determine whether it is safe to proceed with a summary disposition rather than requiring a trial. Ibid at para Hryniak v Mauldin, 2014 SCC 7 [Hryniak]. 91 Bruno Appliance and Furniture, Inc v Hryniak, 2014 SCC 8 [Bruno]. 92 See Cuthbert, supra note 63, and Hino Motors, supra note 64, and the text accompanying notes 63 & Hryniak, supra note 90 at para Ibid at para 2.

27 20 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. 95 Significantly, and in contrast to the views of the Court of Appeal as expressed in Combined Air, the Supreme Court held that we must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial. 96 The Supreme Court overruled the approach provided in Combined Air, holding that the Ontario Court of Appeal placed too high a premium on the full appreciation of evidence that can be gained at a conventional trial, given that such a trial is not a realistic alternative for most litigants. 97 The Court held that while the goal remains to maintain a fair and just process, such a process is illusory unless it is also accessible, timely, and affordable and the cost and delay of the traditional trial process effectively denies many ordinary Canadians the opportunity to adjudicate their disputes. As such, the best forum for resolving a dispute is not always that with the most painstaking procedure. 98 The Court considered the history of summary judgment in Ontario, highlighting in particular that the Osborne Report had concluded that if the summary judgment rule was to work as intended, previous appellate jurisprudence narrowing the scope and utility of the rule had to be reversed. 99 Reviewing the 2010 amendments, the Supreme Court held that the new Rule 20 demonstrates that a trial is not the default procedure. 100 The Court reversed the onus the Court of Appeal held must be applied in Combined Air; it held that the new fact-finding powers granted to motions judges are presumptively available, and ought to be exercised unless the interest of justice 95 Ibid [emphasis added]. 96 Ibid at para Ibid at para Ibid at paras 24 & Ibid at para Ibid at para 43.

28 21 requires them to be exercised only at trial. The Supreme Court concluded: the amendments are designed to transform Rule 20 from a means to weed out unmeritorious claims to a significant alternative model of adjudication. 101 Rather than list relevant factors and categories of cases, as the Court of Appeal had, the Supreme Court preferred to articulate general principles for determining whether there is no genuine issue for trial, holding: 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. 102 Although still providing little in the way of concrete guidance, Justice Karakatsanis elaborated on this general rule as follows: When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. 103 The Court emphasized that a documentary record, particularly when supplemented with motions judges new fact-finding tools, will often be enough to resolve a dispute fairly and justly, calling the powers granted by Rules 20.04(2.1) and (2.2) an equally valid, if less extensive, manner of fact finding Ibid at para Ibid at para Ibid at para 50 [emphasis added]. 104 Ibid at para 57.

29 22 The Supreme Court proceeded in Hryniak to provide a roadmap for a motion for summary judgment. First, a motions judge should assess whether there is a genuine issue requiring a trial without using the new fact-finding powers, asking herself whether the summary judgment process is a timely, affordable, and proportionate procedure, and provides sufficient evidence to fairly and justly resolve the dispute. If there appears to be a genuine issue requiring a trial at that juncture, the motions judge should then determine if the need for a trial can be avoided by using the new powers to weigh evidence, evaluate credibility, draw inferences, and order oral evidence. She may use those powers so long as their use is not against the interest of justice and their use will not be against the interest of justice if they lead to a fair and just result that serves the goals of timeliness, affordability, and proportionality. 105 The Supreme Court in Hryniak also underscored a few measures for maximizing the efficiency of summary judgment motions, such as motions for directions to manage timelines and the cost of motions; trial management orders for failed or partially successful summary judgment motions (including under Rule 20.05); and the continuing involvement of the motions judge in the case ( in the absence of compelling reasons to the contrary, [the motion judge] should also seize herself of the matter as the trial judge ). 106 Ultimately, with its reasons in Hryniak, the Supreme Court of Canada sought to push the bar and bench away from a presumption that cases should be resolved at trial, in favour of summary judgment and other more expeditious, cost-effective, and proportionate means of dispute resolution. Although the Court did not provide concrete guidance for determining what constitutes a fair and just result, its message was clear: the culture of civil litigation needed to change in order to promote timely and affordable access to the civil justice system, and summary judgment motions form an important part of this culture shift. 105 Ibid at para Ibid at paras

30 23 Literature review: Commentary on amendments and the Hryniak culture shift In the wake of the 2010 amendments to the Rules, the Ontario Court of Appeal s decision in Combined Air, and the Supreme Court of Canada s decision in Hryniak, much has been written about the impact of the new Rule 20. Most of this commentary has been qualitative, reviewing the key appellate decisions and commenting on their application in the lower courts. 107 A few practitioners, however, have embarked on quantitative analyses of summary judgment since the 2010 amendments. This section will first review some of the qualitative commentary respecting the changes to Ontario s summary judgment regime, then proceed to review the handful of empirical studies conducted by practitioners, to provide further context for the analysis conducted and discussed in this paper. Steven Kennedy and Carole J Brown (now a judge of the Ontario Superior Court) published their paper Changing the Rules of the Game: Rewinding the First Ten Months of the New Rules of Civil Procedure less than one year into the new regime. 108 They evaluated the 2010 jurisprudence pursuant to Rule 20, and concluded that, despite some divergence in judicial interpretation, the judiciary and litigants had embraced the new rule. 109 Although their article focused on qualitative analysis (and its attention was spread across all the 2010 amendments, not solely those pertaining to summary judgment), the authors predicted there was likely to be a substantial increase in the use of Rule 20 motions in the future, citing the number of summary judgment motions heard and pending by the end of Brown & Kennedy concluded, 107 In addition to the papers discussed herein, see, e.g.: Adrian C Lang & Erica Tait, The new full appreciation test for summary judgment: The judicial gut check, (2012) 30:4 Adv J 6; Neil Finkelstein et al, A New Paradigm for Summary Judgment: Hryniak v Mauldin, (2014), 42 Adv Q 489; Jonathan Lisus, Hryniak: Requiem for the vanishing trial, or brave new world?, (2014) 33:1 Adv J 6; Shantona Chaudhury, Hryniak v. Mauldin: The Supreme Court issues a clarion call for civil justice reform, (2014) 33:3 Adv J 8; Edward Bergeron and Kristin Muszynski, Hryniak: The Road Less Travelled Gets Fresh Asphalt in 1000 Islands Legal Conference 2014 (Kingston, Ont: Frontenac Law Association, 2014); and Jillian Evans, Hryniak s Culture Shift : One Year Later, presented at the Ontario Trial Lawyers Association National Medical Malpractice Conference, Nassau, Bahamas, February 2015, online: Torkin Manes LLP, Brown & Kennedy, supra note Ibid at Ibid. The authors unfortunately do not elaborate on any quantitative basis for this prediction. They offer that 40 cases had considered and applied the new Rule 20 as of the date the paper was written (this date is unknown, but it was at least November 2010 in order to cover the first ten months of the new Rules as indicated by the title, and

31 24 however, that much remained to be seen before the full impact of the new Rule 20 could be assessed. 111 In her article Summary Judgment Has its Day In Court, 112 Professor Janet Walker observed that as divergent approaches to interpreting the new Rule 20 had emerged in the wake of the amendments, Combined Air provided welcome guidance (this paper was published prior to the hearing and decision in Hryniak). 113 Professor Walker argued, however, that the approach to summary judgment required by the Court of Appeal asserted a high standard for granting summary judgment, and may restrict summary judgment motions to remaining essentially a paper hearing; she noted that while motions judges had been authorized to use new powers to assess the evidence, they were expected to do so in the shadow of a traditional concern that the interest of justice may dictate that such powers be exercised only at trial, making their task quite complex. 114 Professor Walker contrasted the Combined Air approach with the developments in civil dispute resolution in British Columbia. After adopting a summary trial process (which was proposed in the Osborne Report but not adopted in Ontario in the 2010 amendments), B.C. achieved gains in efficiency and came to recognize that perfect justice is an elusive goal which even a conventional trial cannot always meet. 115 Professor Walker lamented Ontario s conservative approach, arguing that the idealization of the continuous oral trial comes at the expense of the article was published in January 2011) but do not state their source in this regard (see ibid at 444). They also do not state the number of pending summary judgment motions to which they refer. The authors cite the statistic from the Osborne Report that parties brought summary judgment motions in only 1% of Superior Court civil cases in as support for their prediction that the number of summary judgment motions will substantially increase as a result of the amendments. Putting aside for a moment my questions about this statistic (see the text accompanying note 35), the Osborne Report actually stated that Rule 20 motions were commenced in 642 of Ontario s 63,251 Superior Court civil cases (1%) in a number multitudes greater than the 40 cited by the authors. 111 Ibid at Janet Walker, Summary Judgment Has its Day in Court, (2012) 37 Queen s LJ 697 [Walker]. 113 Ibid at Ibid at Ibid at

32 25 efficiency. 116 Given the emphasis placed on the important role of the trial narrative in Combined Air, Professor Walker worried that the new Rule 20 might not result in the resolution of significantly more cases before trial than were resolved under the previous rule. 117 Toronto litigators Peter Wells and Adrienne Boudreau published two important papers respecting summary of judgment in the Advocates Quarterly in 2012 and Their first paper was a case comment following Combined Air, in which the authors argued that previous changes to the Rules attempting to resolve actions prior to trial had suffered from a pattern of interpretive erosion, by which initial enthusiasm for new procedures gave way to increasingly narrow interpretations of the rules in question, resulting in infrequent use. 119 They noted in particular that early applications of the then-new Rule 20 in 1985 and 1986 saw judges taking a hard look at the merits of the action to determine if it could be disposed of on summary judgment, 120 but this initial enthusiasm waned as courts applying the rule placed restrictions on their own ability to scrutinize and weigh evidence, expressing a reluctance to deprive a party of its day in court. 121 As a result of the strict limitations placed on motions judges, the pre-2010 Rule 20 did not achieve its initial objective to make summary judgment more widely available. 122 The authors were optimistic, however, that this problem might be avoided following Combined Air, as the new Rule 20 expressly granted certain fact-finding powers to motions judges, leaving less room for interpretive erosion Ibid at Ibid at They also published a third paper providing a case comment on the Hryniak decision, which is not as relevant for the purposes of this review: Peter EJ Wells & Adrienne Boudreau, Accessible, Proportionate, Timely and Affordable The Supreme Court of Canada s Challenge to the Bench and Bar in Hryniak v Mauldin, (2014) 42 Adv Q Peter EJ Wells, Adrienne Boudreau & Annik Forristal, A New Departure and a Fresh Approach: The Ontario Court of Appeal Decision in Combined Air, (2012) 39 Adv Q 477. [Wells & Boudreau 2012] 120 Ibid at , citing Vaughan v Warner Commernications, Inc. (1986), 56 OR (2d) 242 (HCJ) & Greenbaum v Ontario Ltd (1986), 11 CPC (2d) 26 (Ont HCJ). 121 Ibid at 483, citing Mensah v Robinson (1989), 14 ACWS (3d) 53 (Ont HCJ) & Aguonie, supra note Ibid at Ibid at 507.

33 26 In their second paper, Wells & Boudreau conducted a quantitative analysis of summary judgment motions to test whether the 2010 amendments to Rule 20 had improved the availability and scope of summary judgment. 124 They concluded that it did not: by comparing summary judgment decisions in 2012 (following Combined Air) to those in 2009, they found that the new rule had failed to lead to any measurable increase in the rate of summary judgment motions. 125 Specifically, the authors determined that while there was a statistically significant increase in the number of summary judgment motions in 2012 as compared to 2009, there was no significant difference in the likelihood a summary judgment motion would be granted, partially granted, or denied between 2009 and Although Wells & Boudreau obtained their data in a manner different from this study (and accordingly our quantitative findings are not identical), these two overarching conclusions hold when comparing the 2009 and 2012 data from this study. Wells & Boudreau, however, went on to conclude that the 2010 amendments had an insignificant impact, stating: it is shocking to discover that a rule change that was expressly designed to make summary judgment more available as a means of finally determining litigation has not made any measurable difference in the anticipated outcome of such a motion. 127 I would not have gone so far. First, their data looks at two years in isolation; it is difficult to confidently draw such a sweeping conclusion without viewing any trends from a continuous, longer term. In any event, I question whether the impact of the new Rule 20 was insignificant when there was a marked increase in the number of summary judgment motions decided after the amendments. Even if the rate of granting summary judgment motions remained the same, the increased number of motions decided resulted in an increase in the number (and, assuming a steady overall caseload in that period, proportion) of civil cases in Ontario resolved by summary judgment prior to trial Peter EJ Wells & Adrienne Boudreau, It Was Déjà Vu All Over Again, (2013) 42 Adv Q 86 [Wells & Boudreau 2013]. 125 Ibid at 87 & Ibid at Ibid at This proposition will be discussed in greater detail when analysing the data collected for this study in Sections 5.4 & 5.5, below.

34 27 Importantly, Wells & Boudreau s data observes the year immediately following Combined Air, which preferred a fairly conservative approach, before the Supreme Court weighed in with Hryniak, which promoted a culture shift away from requiring a trial. Two other Toronto litigators, Matthew Karabus and Ted Tjaden, effectively picked up where Wells & Boudreau left off with their paper, The Impact of Hryniak v Maudlin on Summary Judgments in Canada One Year Later. 129 Karabus & Tjaden reviewed decisions from all across Canada, finding that 460 summary judgment motions and appeals were decided in the year following the Hryniak decision, and nearly 75% were granted or upheld. 130 Comparing their results to those of Wells & Boudreau, the authors concluded that the culture shift toward summary judgment being more broadly utilized by courts appears to be underway. 131 A study similar to Karabus & Tjaden s was performed by two more practitioners, Stephen G Ross & Nathaniel Dillon-Smith, for a legal conference in late Ross & Dillon-Smith compared decisions in 2014 following Hryniak to decisions in the first nine months of 2015, and similarly concluded that more summary judgment motions were being heard in Ontario, and that the proportion of summary judgment motions granted had increased. 133 The authors conclude that it took some time for Hryniak to sink in, but that a culture shift has now begun Matthew Karabus & Ted Tjaden, The Impact of Hryniak v Maudlin on Summary Judgments in Canada One Year Later, (2015) 44 Adv Q 85 [Karabus & Tjaden]. 130 Ibid at 85. The authors methodology again differed from this study they noted up Hryniak on CanLII, Quicklaw, and Westlaw to find all cases citing the decision. It appears, however, that this number refers to cases simply citing Hryniak (regardless of the purpose, including cases referring to its general principles without actually deciding a summary judgment motion); with respect to Ontario, the authors found 299 cases citing Hryniak but just 217 decisions on summary judgment motions or appeals. Using the methodology described below, the study herein located 279 summary judgment decisions in Ontario during the same period. 131 Ibid at Stephen G Ross & Nathaniel Dillon-Smith, A Real Culture Shift Post-Hryniak?, presented at the Osgoode Law School Professional Development 11 th Annual Update on Personal Injury Law & Practice, October 8, 2015 [Ross & Dillon-Smith]. Like Karabus & Tjaden, Ross & Dillon-Smith collected their data by reviewing decisions citing Hryniak, acknowledging that their methodology had the limitation of excluding summary judgment decisions that did not cite Hryniak. 133 Ibid at Ibid at 9.

35 28 Yet another post-hryniak analysis was performed in March 2016 by Loom Analytics, a Torontobased company providing statistical services for the legal industry. 135 In contrast to the two aforementioned post-hryniak studies, Loom Analytics concluded that the proportion of summary judgment motions granted has not increased following the Supreme Court s decision: Loom found that the rate of summary judgment motions granted or partially granted in 2015 was 55.6% very close to the rate of motions granted Wells & Boudreau reported for 2009 (55.2%) and 2012 (56.1%). Loom concluded from this pattern that the hoped-for culture shift has not come to pass. 136 Notably, however, the Loom report is entirely silent on its methodology (although elsewhere on the company s website it is noted that their database is limited to decisions published on CanLII, and that a small percentage of complex proceedings are not included). 137 Like Wells & Boudreau s 2013 study, the Karabus & Tjaden, Ross & Dillon-Smith, and Loom Analytics studies unfortunately do not provide sufficient context to assess long-term trends. Karabus & Tjaden s data looks only at one year of decisions (following Hryniak), then compares against the analysis of two other years of data by Wells & Boudreau, who had used a different source and methodology to arrive at their results. Ross & Dillon-Smith compare two consecutive time periods, both following Hryniak one of over eleven months of 2014, and another of about nine months of 2015 then further compare their results to an unpublished study of cases in the year before and after Hryniak, using a different methodology. 138 Loom Analytics study admittedly simply a blog post provides no context as to how its data was collected and categorized, and also compares the time period reviewed to Wells & Boudreau s more thorough analysis. 135 Mona Datt & LJ Kadey, Summary Judgments Two Years After Hryniak: Has Anything Changed?, Loom Analytics Blog, March 4, 2016 (retrieved March 11, 2016), online: Ibid. 137 See What is the scope of Loom Analytics decision coverage? in Loom Analytics FAQ, retrieved May 26, 2016, online: Ibid at 8-9; see also Drew Hasselback, Where s that flood of summary judgment motions, Financial Post, February 11, 2015 (retrieved May 26, 2016), online: The comparative study, conducted by litigator Gord McGuire, reviewed summary judgment decisions in the twelve months before and after Hryniak (as obtained through Quicklaw searches). McGuire found that in those two periods the proportion of summary judgment decisions granted, partially granted, and denied had hardly changed, and concluded that all the hullabaloo about Hryniak might have been overblown.

36 29 While these articles present a worthwhile contribution to Canadian legal literature in promoting the use of empirical review to assess the effects of changes in the law, none provides a long-term view obtained through a consistent methodology of how litigants and the courts have responded to the rule change. This paper seeks to do just that. Empirical review of summary judgment decisions in Ontario ( ) 5.1 Goals of study In founding the Civil Justice Reform Project, the Ministry of the Attorney General recognized that Ontario needed to make the civil justice system more accessible and affordable for Ontarians. 139 Justice Osborne was tasked with making recommendations about reforms to the Rules of Civil Procedure that would provide meaningful results in enhancing access to justice for Ontarians. 140 The Osborne Report responded to the concerns that summary judgment motions were brought infrequently and Rule 20 was not working as intended. 141 The 2010 amendments to the Rules (stemming from the Osborne Report recommendations) ostensibly sought to address these issues. The Supreme Court in Hryniak lamented Canadians inability to bring or respond to lawsuits due to the time and expense required by trials. Accordingly, it championed a culture shift moving emphasis away from the conventional trial in favour of summary judgment, in order to allow Canadians to have timely and affordable access to the civil justice system. 142 This paper seeks to empirically evaluate whether the 2010 amendments to Rule 20 and their subsequent judicial interpretation did, in fact, provide meaningful results in enhancing access to 139 Osborne Report, supra note 27 at Appendix A (Terms of Reference) & Appendix B (Consultation Letter). 140 Ibid at Appendix A: Terms of Reference. 141 Ibid at Hryniak, supra note 90 at paras 1-2.

37 30 justice for Ontarians 143 and promote timely and affordable access to the civil justice system. 144 Accordingly, we will review whether, following the summary judgment reforms: the number of summary judgment motions decided in Ontario increased; the number of summary judgment motions granted increased; and the proportion of summary judgment motions granted increased. We will review how the number and outcomes of summary judgment motions changed before and after the 2010 amendments, analyzing data from , observing in particular whether and how patterns changed following three key dates: January 1, 2010: Amendments to Rule 20 came into effect December 5, 2011: Ontario Court of Appeal released its decision in Combined Air January 23, 2014: Supreme Court of Canada released its decision in Hryniak By assembling and analyzing a single data set using a consistent methodology, I hope to meaningfully examine long-term trends as to how Rule 20 has been interpreted and applied and observe how litigants and judges behaviour was affected by the amendments to Rule 20 and its subsequent interpretation by appellate courts. Ultimately, this paper seeks to answer the question: Did summary judgment reform achieve its desired effects? 5.2 Methodology Source of data (judgments) I sought to collect all reported 145 decisions rendered on motions for summary judgment pursuant to Rule 20 of the Ontario Rules of Civil Procedure from (the six years prior to and six years following the relevant amendments). 143 Osborne Report, supra note 27 at Appendix A: Terms of Reference. 144 Hryniak, supra note 90 at para Reported refers to decisions available through the three major Canadian publishers of court decisions: CanLII, Westlaw (Carswell), and Quicklaw (LexisNexis) not simply cases published in law reports.

38 31 To do this, I searched each of Quicklaw, Westlaw, and CanLII for cases containing the terms summary judgment OR summary judgement and motion, limiting the search to courts in Ontario and the time period from to I downloaded all 6517 cases that met these parameters from Quicklaw 146 on January 3, 2016; these formed my primary source of data Method of sorting and coding judgments The data was first reviewed by a software program developed for the purpose of this research 147 to gather various easily-identifiable data points (i.e. those which appear in each judgment in the same format and location), then input this data into an Excel spreadsheet. The variables captured through this process were: Case name Court file number/docket Citation(s) Date summary judgment motion was heard 148 Date of summary judgment decision Name of judge(s) or master presiding over summary judgment motion Whether decision-maker was a judge or a master Court (Ontario Superior Court, Ontario Superior Court Commercial List, Divisional Court, or Court of Appeal) A copy of the instructions given to the software developer to identify the relevant data points is included at Appendix C. 146 Quicklaw was used as my source because it gathered the most results from this search. The Quicklaw search resulted in 6517 cases (after Quicklaw excluded duplicates, i.e. cases reported in multiple sources; I used the Quicklaw-native Ontario Judgment version when multiple versions existed). An identical search in Westlaw garnered 6322 results, and CanLII had 6319 results. 147 Software was developed by Jonathan Morris-Pocock, and is on file with the author. 148 Where the motion was heard over multiple dates, only the first date is identified I made this update to each case manually on my review of each case. If the decision only identified one date, it was deemed to be both the date the motion was heard and the date of decision.

39 32 Notably, the search terms used to collect the summary judgment decisions (as described above) were over-inclusive; they captured numerous cases that were not summary judgment motions, including: Motions for costs referring to an earlier summary judgment motion; Trial decisions referring to an earlier summary judgment motion; Motions to strike under Rule 21; Procedural motions referring to an earlier or subsequent summary judgment motion; Motions for security for costs; Motions referring to the general concepts of proportionality and access to justice as articulated in the Osborne Report, Combined Air, and Hryniak Motions for leave to appeal a summary judgment decision (where no substantive determination on the merits was made); Motions similar to summary judgment in proceedings under the Family Law Rules; Motions similar to summary judgment pursuant to the Construction Lien Act. 149 I reviewed each of the 6517 decisions collected to identify all decisions that were not decisions on motions for summary judgment pursuant to Rule 20, or appeals thereof. All such decisions were coded to be excluded from the dataset that was to be analyzed. A copy of the coding guidelines for excluding cases from the dataset is included at Appendix C. Once all such decisions were excluded, 2960 decisions pursuant to Rule 20 motions remained for analysis. In my review, I coded each of the 2960 summary judgment decisions for the following variables: Moving party The search also captured cases decided under rule (summary judgment in simplified procedure actions), before it was revoked in March These were included in the dataset for the purpose of consistency, as for the majority of the study period (upon revocation of rule 76.07) summary judgments under simplified procedure rules were governed by Rule 20. It should be noted, however, that prior to March 2008, rule 76.07(9) provided for a different test than Rule 20: The presiding judge shall grant judgment on the motion unless, (a) he or she is unable to decide the issues in the action without cross-examination; or (b) it would be otherwise unjust to decide the issues on the motion. 150 Coded as follows: (1) Plaintiff(s); (2) Defendant(s); (3) Plaintiff(s) with defendant cross-motion; (4) Defendant(s) with plaintiff cross-motion. Where the moving party was a third or fourth party, they were deemed plaintiff or defendant depending on their role in the claim, counterclaim, or cross-claim to which the summary judgment motion pertained. For instance, if a third party moved for summary judgment to dismiss the plaintiff s claim against her, she would be deemed a defendant. However, if a third party moved for summary judgment on her counterclaim

40 33 Summary judgment disposition 151 Self-represented party 152 Appeal status 153 The process of reviewing and coding the data for appeals is worth briefly noting, as it was required both to ensure that cases were not double-counted, and that the ultimate result of a case was properly recorded. In addition to coding the variables noted above, all decisions of the Court of Appeal and Divisional Court were coded as to whether they granted, dismissed, or partially granted the appeal before it (leave motions in the Divisional Court were coded as such then excluded from further analysis). I then located in the dataset the decision which formed the basis of the appeal, and coded it as to whether it was reversed, affirmed, or partially granted. For the purpose of counting the number of motions for summary judgment heard in the analysis below, only the summary judgment motions at first instance were included in the dataset; appeals were excluded so each motion was only counted once, when it was first heard. For the purpose of determining the number and proportion of summary judgment motions granted, only one decision reflecting the final determination of the summary judgment motion was included in the dataset; dismissed appeals, and reversed and partially-reversed motion decisions were excluded. 154 against the plaintiff (defendant by counterclaim), the third party would be deemed a plaintiff for the purpose of the summary judgment motion. 151 Coded as follows: (1) Granted; (2) Dismissed; (3) Partially granted; (4) Granted for one defendant, but dismissed for another; (5) Motion granted, cross-motion dismissed; (6) Cross-motion granted, motion dismissed; (7) Partially granted for non-moving party; (8) Granted for non-moving party. 152 Coded as follows: (1) losing party was self-represented; (2) winning party was self-represented; (3) both parties were self-represented; (4) no one appearing for losing party. I note that where a party was unrepresented but at least one other party with whose interests were aligned was represented by counsel, the party was not deemed to be self-represented. This arose on very few occasions, typically in the context of co-defendants with substantially overlapping interests in defending the claim. 153 Coded as follows: (1) Appeal granted; (2) Appeal dismissed; (3) Appeal partially granted; (4) Appealed and reversed; (4) Appealed but affirmed; (5) Appealed, partially granted; (7) Leave motion; (8) Appeal dismissed, but underlying decision not reported; (9) Appeal granted, but underlying decision not reported. 154 A few further notes on coding appeals: the Moving party on an appeal was deemed to be the party who initially brought the motion not the party who brought the appeal (as will be discussed below, this variable is intended to capture whether plaintiffs or defendants fare better on summary judgment motions, so the party s status must be identified with the ultimate disposition). Any appeals which pertained to motions decided before the study period (i.e. prior to 2004) were excluded from the database.

41 34 A copy of the dataset and worksheets used to make the calculations in this paper is included at Appendix D Notes respecting the comprehensiveness of the dataset The process of reviewing appeal decisions revealed an important issue with the dataset: there were 168 appeal decisions where the underlying motion decision was never reported. 155 These decisions were coded in a manner so they could stand in for the unreported lower court decision: the date heard variable was modified to refer to the date the original motion was heard, as indicated in the appeal decision. The appeal decision could then be used in both the analysis of the number of motions heard and of the number and proportion of motions granted. Although this issue could be addressed for the decisions in the database, it raises the question of how many decisions are not (and could not be) in the database because they were not reported. I embarked on this project with the inaccurate assumption that Ontario s courts were reporting all its summary judgment decisions to Quicklaw, Westlaw, and/or CanLII. Discovering that numerous appeals pertained to summary judgment motion decisions that were unreported proved this assumption to be incorrect. There were 168 appeal decisions in the dataset for which the underlying motion decision was not reported. There were a total of 509 appeal decisions in the dataset, meaning that of all summary judgment appeals decided from , 33% pertained to decisions that were not reported on Quicklaw, Westlaw, or CanLII. Although this is a rough measure, it suggests that a significant proportion of motion decisions in Ontario courts go unreported. As a result, the unfortunate reality is that the dataset used for this analysis does not include all summary judgment motion decisions in Ontario courts, as it is limited to those decisions that were reported. By one measure (noted above), it appears reported decisions amount to about two thirds of all decisions, but it is not possible to know what decisions are not reported The appeal decision was noted up in Quicklaw (with further spot checks on Westlaw and CanLII) to confirm that the lower court decision s absence in the database was not due to human error (i.e. a problem with the search terms) or a gap in coverage on Quicklaw. In each of these 168 cases, the lower court decision could not be found on any of Quicklaw, Westlaw, or CanLII. 156 I note that prior to developing my methodology of pulling all reported decisions from Quicklaw, I first spoke with two representatives from the office of Management Information at the Ontario Ministry of the Attorney General (MAG) about the possibility of obtaining summary judgment data directly from the Ontario Superior Court.

42 35 It appears, however, that the proportion of unreported decisions remains fairly consistent across the study period: the distribution of appeals of unreported decisions is substantially similar to the distribution of all appeals of summary judgment decisions during the period: Figure 1: Distribution of appeals of unreported summary judgment motions by year, compared to distribution of total appeals of summary judgment motions by year. Lastly, in reviewing all appeal decisions, a handful of cases were discovered where the underlying decision was reported, but was not captured in my search terms (this occurred fifteen times out of 509 appeals, this represents 2.9%). Each of these cases was collected, reviewed, and added to the dataset. In each case, it had not been gathered in the original data collection because the text of the decision did not include the terms motion or summary judgment (or the alternate spelling, summary judgement ). 157 Although, as noted in section above, the Unfortunately, however, this was not possible. Court administration is arranged at the regional level (i.e. according to the eight judicial regions in Ontario: Central East, Central South, Central West, East, Northeast, Northwest, Southwest, and Toronto), and until recently court files were paper-based and physically located in each region s court office. From my discussions with the MAG representatives, I understand that it was not until 2009 that a unified electronic filing database was rolled out across all eight judicial regions in Ontario (Interview with Jim Andersen and Balwant Neote, January 11, 2016). Moreover, between 2009 and 2014, there were further efforts to update and consolidate Ontario courts case management systems into a new Court Information Management System, but this project was abandoned when only partially completed (see, e.g., Drew Hasselbeck, Ontario moves towards digital court records, Financial Post, May 9, 2012, retrieved May 20, 2016, online: and Allison Jones, Ontario admits it blew $4.5-million on failed court modernization project, National Post, September 19, 2014, retrieved May 20, 2016, online: As a result, although some data could be obtained from MAG on summary judgment motions, the data would be incomplete (as it would not cover the time period required of this study), and it would not necessarily be consistent across judicial regions in Ontario. Using data obtained from reported summary judgment decisions was thus the preferred form of obtaining data that was consistent and as comprehensive as possible over the full study period. 157 Collecting decisions on the basis of search terms was required because there is no straightforward way to otherwise gather all summary judgment motions or motions decided pursuant to Rule 20; neither judges nor the courts label or otherwise categorize decisions as such, and the databases of decisions citing certain rules in Quicklaw and Westlaw are unfortunately inconsistent and under-inclusive for our purposes (they tend to categorize cases by whether the text of the decision including the words rule 20 or r. 20, which raises the same problem as search terms, but to a greater degree).

43 36 search terms used were vastly over-inclusive, it was perhaps inevitable that a few decisions would not be captured because of the particularities of wording by a handful of judges in a handful of cases. Ultimately, the fifteen decisions (which were added to the database, but may represent a sample of other Rule 20 motions that were not captured) pale in comparison to the 168 decisions that were simply unreported either way, the dataset cannot be totally comprehensive, but rather a substantial (perhaps two-thirds) representative sample of all decisions pursuant to Rule 20 during the study period. 5.3 Number of motions for summary judgments rendered The number of motions for summary judgment rendered has in fact increased since the reforms came into effect on January 1, In every year since the reforms, the number of summary judgment decisions has been greater than all the years prior to 2010 reviewed: Figure 2: Number of summary judgment motions decided in Ontario, by year decision was rendered ( ). Notably, following an initial high watermark in 2011, there is a clear decrease in the number of motions heard in 2012 and 2013 (although the number of motions heard in these years still

44 37 remained greater than in the years prior to the rule change). This decrease is likely due to the decision in Combined Air in December 2011, in which the Court of Appeal emphasized the benefits of trial and held that summary judgment under the new rule should only be granted if the motion judge can gain a full appreciation of the facts without a trial. This suggests that litigants and lawyers making decisions about whether to file a summary judgment motion understood the Combined Air decision as reining in the expansion of the rule. However, after the Supreme Court s decision in Hryniak on January 23, 2014 made clear that the summary judgment procedure should be used more often, we can observe the number of motions increasing once again. The increase in 2014 is small, but the increase in 2015 is dramatic. The delay before we can observe the substantial increase in the number of summary judgment decisions rendered is likely due to the time it takes for motions to work their way through the court process it takes several months to prepare, schedule, and eventually argue a motion once a litigant decides to pursue summary judgment, 158 and over 90% of summary judgment motions heard in 2014 were reserved for an average of 75 days before a decision was ultimately rendered. 159 Many litigants who filed motions in response to the Supreme Court s decision in Hryniak in January 2014 would thus not see a decision rendered on their motion until Ultimately, the number of summary judgment motions decided in Ontario in 2015 was a 70% increase over the number decided in 2009 (the last year under the old Rule 20, as well as the year in the study period prior to 2010 with the greatest number of summary judgment motions). Even before appellate courts were able to offer guidance, and after the Court of Appeal interpreted the rule in a restrictive manner in Combined Air, the number of summary judgment motions increased under the new rule: there was a 22% increase in 2010 over 2009, and a 21% increase in motions decided in 2013 (the year in the study period under the new rule with the fewest 158 The wait time for a summary judgment motion to be scheduled and heard varies by court region, and can change over time as the court develops new practice directions and processes to schedule motions. From personal experience practicing in Toronto in 2014 and 2015, it could take a couple months to prepare and exchange motion materials, at which time the parties would need to attend motion scheduling court to get a summary judgment date, which could be four to six months away. In 2015, the Toronto region instituted a new system called Civil Practice Court, which required parties to be ready for their motion to be heard within 100 days in order to get a date in my experience, although this reduced the delay between scheduling the motion and having it heard, it increased the time from initiating a motion to having it scheduled. In either case, further delay could result in scheduling and conducting cross examinations on affidavits. 159 See calculations in Appendix E, worksheet entitled Reserve time.

45 38 summary judgment decisions rendered). Overall, the number of summary judgments decided between was 65% greater than the number decided between Another way to consider patterns in the number of summary judgment motions is by the date the motion was heard (rather than when the decision was rendered). The number of motions heard increased 2010 and 2011, before falling in 2012 and 2013 following Combined Air. In 2014, following Hryniak, the number of motions heard jumped up once again: Figure 3: Number of summary judgment motions decided in Ontario, by year motion was heard ( ). Although the number of motions heard appears to decrease in 2015, this can likely be accounted for by the fact that the dataset was limited to judgments rendered up to December 31, As judgments are often reserved for a number of months after they are heard, it is likely that more motions were heard in 2015 but had not been released by the end of the study period. 160 This 160 Summary judgment motions heard from were reserved for an average of 59 days: see Appendix E, worksheet entitled Reserve time. If one views the 2015 data as representing just 306 days of the year to account

46 39 explanation is supported by the data broken down by quarter; the number of decisions is generally increasing in Q1 and Q2 of 2015, but there is a sharp decrease in Q3 and Q4: Figure 4: Number of summary judgment motions decided in Ontario by year and quarter motion was heard ( ). Interestingly, MAG statistics indicate that both the overall number of new civil actions initiated in Ontario and the number of proceedings heard (including motions) by the Superior Court per year decreased after 2009: 161 for judgments under reserve, then extrapolate to estimate how many motions would be heard over 365 days of 2015, we would see 311 decisions heard in 2015 the highest of all years in the study period. 161 New civil actions includes all new files commenced by claim, statement of claim, notice of action, and third or subsequent party claim, and does not include Small Claims Court proceedings or family proceedings. Proceedings heard includes trials, pre-trials, settlement conferences, motions, case conferences, assessment hearings, status hearings, references before Masters, passing of accounts, and appeal hearings. Unfortunately, MAG data for the number of proceedings heard is only available by MAG fiscal year (April 1 to March 31), and only up to , so it is not possible at this time to assess the trends observed following Combined Air and Hryniak as against the total number of hearings. It is worth noting, however, that when summary judgment motions heard are analyzed by MAG fiscal year, there is no significant change to the patterns observed when reviewing by calendar year. Sources: Number of New Actions Received (data table obtained on June 14, 2016 by request to the Management Information Unit, Court Services Division, Ministry of the Attorney General; on file with the author); Ministry of the Attorney General Court Services Division, "Annual Report 2004/05", at p. B5, April 2005, retrieved May 28,

47 2016, online: nnual_05.pdf ( data); Ministry of the Attorney General Court Services Dvision, "Annual Report 2008/09" at p. 31, retrieved May 28, 2016, online: nnual_08/court_services_annual_report_full_en.pdf ( data); Ministry of the Attorney General Court Services Division, "Annual Report " at p. 30, retrieved May 28, 2016, online: nnual_12/court_services_annual_report_full_en.pdf ( data). 40

48 41 NEW ACTIONS COMMENCED IN ONTARIO 80,000 70,000 60,000 50,000 40,000 30,000 20,000 10, CIVIL PROCEEDINGS HEARD IN ONTARIO 160, , , ,000 80,000 60,000 40,000 20, Figure 5: Number of new civil proceedings initiated and total number of civil hearings in the Ontario Superior Court, by calendar year and MAG fiscal year (April 1- March 31), respectively. Source: MAG Court Services Division Annual Reports and data tables (see footnote 161). This suggests that the increase of summary judgment motions after the reforms is not attributable to an increase in the number of motions generally, or an increase in the number of actions in the Ontario Superior Court.

49 Number of motions for summary judgment granted The data also demonstrate an increase in the number of summary judgment motions granted and partially granted each year following the implementation of the 2010 amendments: 162 Granted Partially granted Dismissed Total Total Table 1: Number of summary judgment motions granted, partially granted, and dismissed, by year of judgment ( ). 162 The categories of Granted, Dismissed, and Partially granted include groups as follows: I deemed a motion to have been Granted where summary judgment was dispositive of the action, including where there were cross motions and one was wholly granted and the other dismissed. I deemed a motion to have been Partially granted where a motion for partial summary judgment was granted; where a motion for summary judgment was granted in part (on some issues but not all); and where summary judgment was granted for one party, but not other moving parties. Motions were deemed Dismissed when the motion was wholly dismissed. These dispositions represent the final disposition of the motion as at December 31, 2015, including any appeals whose decisions had been rendered by that date (i.e. if a motion was granted by the motions judge but an appeal was granted dismissing the motion, the motion is deemed to have been dismissed). Considering the final disposition on appeal, rather than a decision at first instance that was reversed or varied, is the reason for the small discrepancy in year-over-year totals when compared to Figure 2.

50 43 Figure 6: Number of summary judgment motions granted or partially granted, by year of judgment ( ). Once again, the greatest increases can be seen in 2011 and 2015 one year after each of the implementation of the new Rule 20 and the Hryniak decision. 163 Moreover, the number of motions granted and partially granted drops sharply in 2012, following the Combined Air decision. This suggests that not only were litigants and lawyers decisions as to whether to bring a summary motion influenced by the changes to Rule 20 and judicial interpretation of the new rule, but that motions judges followed the Court of Appeal s direction in Combined Air that they must be able to obtain a full appreciation of the evidence in order to grant summary judgment and reined in the use of their expanded powers accordingly. The number of summary judgment motions granted or partially granted remained at that decreased level (albeit still at least 21% greater than pre-2010 levels) until 2015 saw an increase in motions before the court following Hryniak. In 2015, 257 summary judgment motions were granted or partially granted nearly double the number that had been granted or partially granted in This is consistent with our estimate of the time required for a motion initiated after (in response to) a key event to be prepared, scheduled, heard, and decided: see supra notes 158 and 159 and the accompanying text.

51 Proportion of motions for summary judgment granted In addition to the number of summary judgment motions granted under the new Rule 20, we must also consider whether the proportion of motions granted has changed over the study period in light of the revised test for granting summary judgment; motions judges new powers to assess and weigh evidence; and the push for a culture shift away from viewing traditional trials as the default and preferred means of civil dispute resolution. In this regard, the data is a little less clear. Granted Partially granted Granted OR partially granted Dismissed % 10% 66% 34% % 9% 59% 41% % 8% 54% 46% % 7% 52% 48% % 10% 59% 41% % 11% 68% 32% % 7% 63% 37% % 11% 72% 28% % 11% 61% 39% % 12% 66% 34% % 13% 67% 33% % 12% 76% 24% % 10% 66% 34% % 13% 72% 28% % 9% 60% 40% % 11% 68% 32% Overall period 55% 10% 65% 35% Table 2: Proportion of summary judgment motions granted, partially granted, and dismissed, by year of judgment ( ). In comparing the six-year periods before and after the amendments, the proportion of summary judgment motions granted or partially granted has gone up from 60% to 68%. Given that standard for summary judgment was in flux for the first few years of the new Rule 20, as motions judges muddled through their own interpretations of the rule and followed the Court of Appeal s later-overruled guidance in Combined Air, one might focus on the outcomes of summary judgment motions decided in the last two years (essentially, the period since Hryniak) as compared to outcomes in the pre-2010 period. This reveals an even bigger change: the proportion of motions granted or partially granted increased from 60% in to 72% in (One notes, however, that the proportion of motions granted or partially granted in the

52 period of flux under the new Rule 20 remained greater than in the pre-2010 period (66% vs. 60%). The proportion of motions granted, partially granted, and dismissed during the relevant periods can be illustrated as follows: Figure 7: Proportion of summary judgment motions granted, partially granted, and dismissed (periods in ). These findings suggest that the relaxed test for granting summary judgment; expansion of motions judges powers to assess and weigh evidence; and the push for a culture shift did, in fact, result in a greater proportion of summary judgment motions granted. However, when breaking down the data year-by-year, these proportions vary significantly:

53 46 Figure 8: Proportion of summary judgment motions granted, partially granted, and dismissed, by year of judgment ( ). In particular, the year-over-year data show that in both 2004 and 2009, under the old Rule 20, 66-68% of summary judgment motions were granted or partially granted a greater proportion than in 2010 and 2012, and a similar proportion to 2013 and Only in 2011 and 2015 were the proportions of motions granted and partially granted greater than they had been in every year studied prior to the amendments. Notably, the proportion of summary judgment motions granted or partially granted in 2004 and 2009 is significantly greater than in the other four pre-amendment years studied. In each of , the proportion remained below 60% lower than all years under the new Rule 20. Considering the entire six-year pre-amendment period as a whole certainly suggests the new rule made a difference to motions judges ability and/or inclination to grant summary judgment perhaps the outcomes in summary judgment motions in 2004 and 2009 were aberrations. Nevertheless, a review of the year-over-year data urges caution in drawing sweeping conclusions. More time may be required before we can firmly conclude that the new Rule 20 has increased one s chances of success on a summary judgment motion.

54 Other findings The assembly of a large dataset on summary judgment motions allows us to consider other questions about civil dispute resolution. While gathering and reviewing the dataset for this study, I observed and tracked additional variables for each case, including whether any of the parties was self-represented, whether a cross-motion for summary judgment was heard, and whether a summary judgment motion was heard before a Master (rather than a judge) or on the Commercial List. In this section, we will briefly review some interesting findings that arose from the dataset collected and analyzed for this study Self-represented plaintiffs and summary judgment motions In November 2015, the National Self-Represented Litigants Project ( NSRLP ), a research group led by Dr. Julie Macfarlane of the University of Windsor Faculty of Law, released a report on how summary judgment procedures affected self-represented parties. Their conclusions were startling: they reported a 1160% increase in the use of summary judgment procedures against self-represented litigants ( SRLs ) from 2004 to 2014 (800% when excluding cases where the SRL or her case were found to be vexatious ), and a success rate of 96% in summary judgment procedures used against SRLs in The NSRLP elaborates on these findings and their methodology in their full report, The Use of Summary Judgment Procedures Against Self-Represented Litigants: Efficient Case Management or Denial of Access to Justice? ( the NSRLP Report ). 165 First, the aforementioned figures are not limited to motions for summary judgment pursuant to Rule 20 they also include motions to strike under Rule 20, and other decisions (from throughout Canada) that refer to there being no 164 National Self-Represented Litigants Project, Summary Judgments The Backstory That May Shock You, National Self-Represented Litigants Project Blog, November 16, 2015, retrieved May 30, 2016, online: [NSRLP Blog]. 165 Julie Macfarlane, Katrina Trask & Erin Chesney for the National Self-Represented Litigants Project, The Use of Summary Judgment Procedures Against Self-Represented Litigants: Efficient Case Management or Denial of Access to Justice?, November 2015, available online: [NSRLP Report].

55 48 genuine issue for trial, no chance of success, or no triable issue, or state that it is plain and obvious that the action cannot succeed. 166 Moreover, their data included just the years 2004 and 2014, so reviews a snapshot at the beginning and end of a ten-year period (without assessing the greater context). The NSRLP Report also honed in on Ontario cases citing Rules 20 and Unfortunately for our purposes, they did not distinguish between the two in their study. When reviewing motions pursuant to Rules 20 and 21, the NSRLP found that the number of such motions where both parties were represented increased 93% from 2004 to 2014 (from 33 to 61), whereas the number of such motions brought against a self-represented party increased by 225% during that period (from 4 to 13). 168 Considering the rate of success of Rule 20 and 21 motions, the NSRLP found that the success rate when both sides were represented was 61% in 2014, while motions brought against SRLs were 88% successful in The NSRLP noted in particular the striking difference in the success rate of these motions when brought against SRLs (88% in 2014, 100% successful in 2004), vs. when brought by SRLs (none successful in either 2014 or 2004), and those brought between represented parties (61% successful in 2014, 70% successful in 2004). 170 They concluded the report by expressing concern that efforts to avoid undue expense and delay do not prejudice access to justice, 171 noting the need for further data collection in this area, hoping that their work may provide impetus for such a project Ibid at Rule 21 provides for a motion to strike a pleading where it discloses no reasonable cause of action or defence. It is a stringent standard, which tends to be applied only where the court finds that, assuming all facts pleaded to be true, it is plain and obvious that the action is certain to fail: see Odhavji Estate v. Woodhouse, 2003 SCC 69 at para 15. Rule 21 also permits a party to move for the determination of a question of law before trial, where the determination of the question may dispose of all or part of the action, substantially shorten the trial, or result in substantial cost savings: Rules, supra note 1, r 21.01(1). 168 NSRLP Report, supra note 165 at NSRLP Report, supra note 165 at Ibid at Ibid at Ibid at 18.

56 49 The data collected for the herein study provides the opportunity to expand upon the NSRLP s work. By analyzing a more comprehensive dataset, we can observe trends in summary judgment motions involving self-represented litigants over time. On a cursory review, we can see that the increase in the number of summary judgment motions involving self-represented plaintiffs generally reflects the pattern of increased Rule 20 motions across Ontario: Figure 9: Number of summary judgment motions involving a self-represented party, by year of judgment ( ). Digging a little deeper, we can compare the year-over-year patterns respecting motions for summary judgment brought against self-represented plaintiffs, considering both the number of motions determined and the proportion of those motions that were granted:

57 50 Motion granted 173 Motion dismissed Total Success rate % % % % % % % % % % % % % % Total % Table 3: Number and outcomes, and success rates of summary judgment motions brought by a represented party against a self-represented party ( ). First, it is undoubtable that the proportion of summary judgment motions brought against selfrepresented parties that are granted is higher than the norm. The average rate of success 174 for motions against SRLs over the period was 92%, as compared with a 65% success rate overall. In the period, under the new Rule 20, 95% of summary judgment motions brought against self-represented plaintiffs were granted (as compared to 68% overall during that period). Post-Hryniak, 72% of motions for summary judgment overall have been successful, while 96% of motions brought against SRLs have been successful. We can also consider the increase in the number of summary judgment motions brought against SRLs in context. We recall that the total number of summary judgment motions decided in Ontario between was a 64% increase over the period. When limiting our review to motions brought against a self-represented plaintiff, the increase is 113%. We also found above that the number of summary judgment motions decided in Ontario in 2015 was a 70% increase over the number decided in The number in motions brought against SRLs in 2015 is 105% greater than the number in While the data do reveal a noticeable increase in summary judgment motions brought against self-represented plaintiffs in the period, the figures resulting from this study are a far cry from the 1180% increase initially reported in 173 Includes motions partially granted. 174 Proportion of motions granted or partially granted.

58 51 the NSRLP study. 175 Moreover, this study demonstrates the context of an increase in summary judgment motions generally, in light of the reforms to Rule 20 and their judicial interpretation. As a final note regarding self-represented litigants, SRLs brought seventeen motions for summary judgment against represented parties from : four prior to 2010, and thirteen under the new Rule 20. SRLs were successful in only three of these motions: one in 2013, and two in The sample size is too small to draw any meaningful conclusions, but it is interesting to note that self-represented parties have been able to succeed on summary judgment against represented parties under the new Rule 20, where they had not done so under the old rule, and that is particularly so now that the culture shift is underway Subsets of the Superior Court: The Commercial List & Masters Another issue considered as part of this study was the role of the decision-maker on a summary judgment motion. In particular, I assessed the court in which the decision was rendered, and whether the decision-maker was a judge or a master. Tracking the court was done in part to ensure appeals and motions for leave to appeal of existing summary judgment decisions were not counted twice. However, we could also observe whether an action was on the Commercial List. The Commercial List is a subset of the Ontario Superior Court in the Toronto Region; it was established in 1991 as a venue for cases involving issues of commercial law. Having a matter heard on the Commercial List is voluntary (except for bankruptcy matters), but it has special procedures to expedite the hearing of certain actions, applications, and motions. 176 I hypothesized that in light of the goal of the Commercial List to expedite the hearing of matters that require a speedy resolution, and the sophistication of parties to matters on the Commercial List, it may show a more dramatic increase in the number of summary judgment motions or the proportion of summary judgment motions granted following the reforms, or both. 175 Or the 800% increase reported with respect to summary judgment procedures brought against SRLs not found to be vexatious, or the 225% increase reported with respect to Rule 20 and 21 motions brought against SRLs. 176 Consolidated Practice Direction Concerning the Commercial List, Ontario Superior Court of Justice, effective July 1, 2014, retrieved May 31, 2015, online:

59 52 Unfortunately, the number of summary judgment motions brought in matters on the Commercial List is too small to draw any statistically significant conclusions: # SJ motions # Granted 177 % Granted % % % % % % % % % % % % % % Total % Table 4: Number and outcomes of summary judgment motions brought in actions on the Commercial List ( ). Only 41 motions for summary judgment were initiated for matters on the Commercial list from prior to 2010, and 28 after the amendments. The average number of summary judgment motions determined per year increased from 2.2 in to 4.7 in , but the proportion of summary judgments granted in the post-amendment period actually decreased from 77% to 54%. Overall during the study period, the success rate for summary judgment motions on the Commercial List was 61% (as compared to a 65% success rate for all summary judgment motions in Ontario). The data respecting summary judgment motions heard by masters, rather than judges, is more interesting. Masters are provincially-appointed judicial officers granted the authority to hear and determine certain matters in civil cases, including motions, pre-trial conferences, and case conferences. 178 As provincially-appointed officials, they do not have the same inherent jurisdiction as judges of the Superior Court, but they serve a valuable role in the Superior Court case management and in expediting the litigation process by resolving procedural disputes. 177 Includes motions partially granted. 178 Ontario Superior Court of Justice, About Judges and Judicial Officials: Masters and Case Management Masters, retrieved May 31, 2016, online:

60 53 Importantly, the 2010 amendments granted the power to weigh evidence, assess credibility, draw reasonable inferences, and order oral evidence to judges but not masters, despite masters jurisdiction to hear summary judgment motions. As a result, one might suspect that after 2010 litigants would increasingly file their summary judgment motions to be heard by judges, so to take advantage of the new powers. The data bear out this hypothesis: Judge Master Total % heard by Master % % % % % % % % % % % % % % Total % Table 5: Number and outcomes of summary judgment motions brought in actions on the Commercial List ( ). Although masters never heard a high proportion of summary judgment motions in the Ontario Superior Court, this proportion has undoubtedly decreased since the new Rule 20 granted powers to assess evidence to judges but not masters. In the six years prior to the amendments, masters heard 45 summary judgment motions out of a total of 890 (4.8%). In the period following the amendments, masters heard just 23 summary judgment motions out of 1479 filed in the Superior Court (1.5%). In 2015, the proportion of summary judgment motions determined by masters was just 0.7%. It is unclear why the new powers under Rule 20.04(2.1) and (2.2) were granted to judges but not masters. Ultimately, the data suggest that where both masters and judges have jurisdiction to hear a motion, but judges may exercise certain powers on the motion that masters may not, litigants will file their motions before judges. Future study may elucidate the impact of this discrepancy in authority, and litigants response thereto, on any delay in having summary judgment motions and trials scheduled.

61 Prevalence of cross-motions for summary judgment A final interesting trend observed in the data is a significant increase in the prevalence of crossmotions for summary judgment following the amendments: Figure 10: Number of summary judgment motions where at least one responding party filed a cross-motion for summary judgment, by year of judgment ( ). Cross-motions Total motions % Motions with cross-motions % % % % % % % % % % % % % % Table 6: Number of summary judgment motions where at least one responding party filed a cross-motion for summary judgment, by year of judgment ( ). As revealed in Figure 10 and Table 6, above, cross-motions for summary judgment were filed in only a handful of cases an average of 1.8% of all summary judgment motions prior to the