16 | Summary Proceedings
Foreman, Jonathan
Harrison Pensa LLP
(519) 661-6775
jforeman@
harrisonpensa.com
Mr. Foreman's practice
focuses on representing
plaintiff s in class
actions. His experience
embraces securities,
competition, fi nancial
services, insurance,
pensions, employment,
IP, franchising, consumer
complaint and product
liability matters.
Fuerst, Linda L.
Lenczner Slaght Royce
Smith Griffi n LLP
(416) 865-3091
lfuerst@litigate.com
Ms. Fuerst's litigation
practice covers a range
of commercial matters,
focusing on securities
litigation, class actions
and regulatory issues.
She has appeared
before all levels of court
in Ontario, provincial
securities commissions
and IIROC.
Garland, Steven
Smart & Biggar/
Fetherstonhaugh
(613) 232-2486
sbgarland@
smart-biggar.ca
Mr. Garland specializes
in IP litigation of all
types including patent,
trade-mark, copyright,
industrial designs, trade
secrets and competition
law. He has appeared
before the Federal &
Supreme courts as senior
counsel in patent and
trade-mark matters.
Fox, Mary Margaret
Clyde & Co Canada LLP
(647) 789-4808
marymargaret.fox@
clydeco.ca
Ms. Fox specializes in
D&O liability insurance,
professional E&O
insurance, coverage
opinions and commercial
litigation (defence)
involving directors,
offi cers and other
professionals.
Gaikis, Gunars
Smart & Biggar/
Fetherstonhaugh
(416) 593-5514
ggaikis@smart-biggar.ca
Mr. Gaikis specializes
in pharmaceutical
and biological patent
litigation at trial and
appeal, primarily for
patentees, in the Ontario,
Federal and Supreme
courts. He is a licensed
pharmacist as well as a
patent and trade-mark
agent.
Gascon, Denis
Norton Rose Fulbright
Canada LLP
(514) 847-4435
denis.gascon@
nortonrosefulbright.com
Mr. Gascon advises
on competition and
international trade law,
including Canadian
and multijurisdictional
mergers, criminal
cartels and conspiracies,
distribution strategies
and pricing practices,
compliance programs
and trade remedies.
LEXPERT®Ranked Lawyers
I think inevitably there will be an increase in summary judg-
ment motions brought."
e jury is still out on the new civil litigation process, says
Jonathan Lisus of Lax O'Sullivan Scott Lisus LLP. "We're
going to have to let the summary judgment process, as it
has been redefi ned by Hryniak and interpreted by courts,
play out before we can conclude that this has enhanced ac-
cess to justice."
e SCC reversed the Ontario Court of Appeal's ruling
in Combined Air Mechanical Services Inc. v. Flesch, a 2012
decision seen as an attempt to preserve the sanctity of the
civil trial and a setback to the wider use of summary proce-
dure in Ontario.
Under a summary judgment process, the court can resolve
a legal dispute without the necessity of a conventional trial,
because there is no confl icting evidence that needs to be rec-
onciled. e parties agree on the facts, and the judge need
only apply the relevant law.
Ontario in 2010 had amended its Rules of Civil Proce-
dure with Rule 20, which allows judges to resolve confl icts
in the evidence through special fact-fi nding tools—thus pro-
viding for more summary proceedings.
In practice, judges interpreted the new rule narrowly.
Typically, the motion judge would decide that the evidence
on the motion raised factual issues that necessitated a con-
ventional trial.
e appellate ruling in Combined Air reinforced this ten-
dency. "Its 'full appreciation' test made it more diffi cult to
get summary judgment than it was prior to the changes" in
Rule 20, says Bredt.
e SCC in Hryniak reversed that position, thereby
broadening the scope for summary adjudication. e high
court held that the appeal court's "full appreciation" test
was too stringent. Justice Andromache Karakatsanis, writ-
ing for a unanimous SCC, substituted a test of "fair and
just adjudication."
"In my view," she wrote, "a trial is not required if a sum-
mary judgment motion can achieve a fair and just adjudica-
tion, if it provides a process that allows the judge to make the
necessary fi ndings of fact, apply the law to those facts, and is
a proportionate, more expeditious and less expensive means
to achieve a just result than going to trial."
Justice Karakatsanis acknowledged the tradeoff s between
a summary adjudication and a full-blown trial, but said that
striving for perfection in all cases is too costly. e net benefi t
to society is greater with increased access to the justice system
for a larger number of participants.
According to the SCC, the process that judges should fol-
low on a summary judgment motion is as follows:
1. e judge will decide if there is a genuine issue requiring
trial based on the documentary evidence (without use of the
new fact-fi nding tools). If there is not, summary judgment
should be granted.
2. If there is a genuine issue for trial, the judge will then decide
if the need for a full trial can be avoided using the new fact-
fi nding tools. If so, then those powers should be exercised and
summary judgment granted if the plaintiff 's claim is proven
on the evidence obtained through the use of those tools.
3. Where there remains a genuine issue for full trial, the same
judge should hear the dispute at trial (unless there are com-
pelling reasons why they should not).
Plumpton describes what the SCC had in mind as a
"bucket of techniques" that allow for cases to proceed with-
out the need for all of the trappings of trial.
