The Supreme Court’s decision in Hryniak v. Mauldin  S.C.J. No. 7 (“Hryniak”) is the latest in a series of laudable appellate decisions which are designed to provide more timely and affordable justice. However, these decisions do not address the judicial resources required to implement the decisions. Does summary judgment arbitration provide a better alternative?
Appellate courts across Canada have tried to provide motion judges with judicial teeth to encourage the use of motions for summary judgment so as to increase access to justice. However, through practice, these decisions can add more hurdles to the summary judgment process. For example, Justice David Brown’s decision in George Weston Limited v. Domtar Inc., 2012 ONSC 5001 provides a frank assessment of the, “tension [that] exists between the theoretical purpose of summary judgment motions and the reality of their practice” (at para. 1). He points to the Court of Appeal’s decision in Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764 (CanLII), where the Court of Appeal tried to improve Rule 20 and the cumbersome procedures which had developed on summary judgment motions. The Court of Appeal suggested that where a party is faced with a premature or inappropriate summary judgment motion, it should have the option of moving to stay or dismiss the motion.
Motions to stay were rare before Combined Air; however, once the genie was out of the bottle, many counsel saw these motions as ways of derailing summary judgment motions. Summary judgment motions in Toronto already required an attendance in Motion Scheduling Court where counsel were routinely told that the hearing of the motion could not occur for 12 months or more. Justice Brown noted that, unless summary judgment practice improved, judges risked losing commercial litigation to arbitrators.