HRYNIAK’S EROSION

SUMMARY JUDGMENT IN ONTARIO

Abstract

Access to civil justice has long been in crisis in Ontario, and the 2010 reforms to the Rules of Civil Procedure broadened the scope of summary judgment under Rule 20 in part to tackle cost and delay. The Supreme Court of Canada also encouraged the use of summary judgment as an adjudicative alternative to trial in Hryniak v Mauldin in 2014, calling for a “culture shift” in the conduct of litigation.

The effect of Hryniak, however, has been eroded. Our empirical research of reported summary judgment decisions in Ontario from January 1, 2015 (five years pre-pandemic) to December 31, 2024 (five years after its start) shows that summary judgment decisions and hearings plummeted in 2020 and have not recovered. Our study also shows that parties are now bringing summary judgment motions that are more likely to succeed.

The reasons are procedural and doctrinal. Since July 2015, Toronto’s Civil Practice Court has been screening summary judgment motions before they can be scheduled. In addition, decisions from the Court of Appeal for Ontario have restricted the availability of summary judgment.

More recently, the Civil Rules Review Working Group tasked with reforming Ontario’s Rules has targeted ‘failed’ summary judgment motions. Given that numbers of such motions have already reduced drastically and there is already screening in Toronto and elsewhere, the impact of those changes may be slight. There is also the danger that, without more judicial resources, the Working Group’s proposed ‘Summary Track’ may suffer the same erosion as Rule 20.