By: Katie Hammond, Assistant Professor, Ryerson Faculty of Law
The Summary Judgment
Access to justice is a major problem in Canada. Improving access to justice has been cited as the primary goal of recent civil procedure reform efforts in provinces across the country. One procedural tool that is thought to play an important role in helping this problem is the summary judgment, which allows a judgment to be delivered in a summary way without the cost and time associated with a full trial.
Reforms to the Summary Judgment Rule in Ontario
In the last two decades, considerable changes around summary judgment occurred in Ontario. The impetus for these changes began in 2006 when the Honourable Coulter A. Osborne was tasked with assessing the Ontario civil justice system and identifying areas in need of reform. Osborne’s final report suggested that summary judgments were an important tool to increase proportionality and reduce delays and costs. However, the report revealed that the existing summary judgment rule, which involved determining whether the claim or defence raised a “genuine issue for trial,” made it too difficult to succeed on a summary judgment claim, among other problems.
After the release of this report, the language of the summary judgment rule was changed as part of a wider civil procedural reform in Ontario. The initial interpretation of the new rule was relatively conservative. However, in 2014 in Hryniak v Mauldin, Justice Karakatsanis wrote for a unanimous Supreme Court, who called for a shift in the legal culture and said that judges need to manage the legal process in line with the principle of proportionality. The Court gave a much broader interpretation to the summary judgment rule, and Karakatsanis wrote that the changes to the rule demonstrate that a trial is not the default procedure, hence why the rule now asks whether there is “a genuine issue requiring trial.” These changes have led to a greater reliance on summary judgment motions in Ontario. This trend is also apparent in other Canadian provinces, many of which have also liberalized their summary judgment rules in the past few decades.
Are There Procedural Tools in Quebec that Approximate the Summary Judgment?
Even though there was a major reform to the Quebec Code of Civil Procedure and a new Code came into effect on January 1, 2016, the summary judgment was not introduced in the Quebec reform. Justice Karakatsanis, however, in Hryniak, points to two articles of the Quebec Code that have been likened to summary judgment. My paper explores the accuracy of the claim that Quebec has procedural devices that could be likened to summary judgment. I argue that there is not a Quebec procedural tool that approximates the summary judgment.
The first indicator that there are no functional equivalents to summary judgment in Quebec is that there is no historical record of summary judgment in the province. While summary judgment is a long-standing tool in the common law, there appears to be no equivalent in the civil law legal tradition. Second, the Quebec legislature did not consider summary judgment in drafting the new Code. There is no mention of it in any of the draft bills or in the transcripts from the sittings and public consultations.
Third, there are four articles in the Quebec Code of Civil Procedure (articles 209, 51 et seq. (previously 54.1), 168 (previously 165) and 154) that on the surface look like they might function like the summary judgment. Two of these are the articles identified by Justice Karakatsanis in Hryniak. In the paper, I look at each of these articles in turn. When they are examined more closely, in terms of how they operate in practice, it becomes evident that these are not functional equivalents of the summary judgment.
Finally, two post Hryniak cases—Ordres des Dominicains c CIBC Wood Gundy 2014 and Struthers c Régie des marches agricoles et alimentaires du Quebec 2015—have further explored the question of whether summary judgment exists in Quebec. Ultimately, both cases seem to posit that Quebec does not have functional equivalents to the summary judgment, and that Quebec approaches the issue in a different way.
Quebec’s Unique Procedural Tools to Engage in the Post-Hryniak Cultural Shift
This leads to a second, and perhaps more important, takeaway of the paper, which is that even though Quebec does not have a functional equivalent to the summary judgment, it has its own unique tools to engage in the post-Hryniak cultural shift towards greater access to justice. Many of Quebec’s tools either do not have an equivalent in Ontario, or the Ontario version is slightly different. Some examples of Quebec tools that give judges more control over the case and streamline the process are: (1) the case protocol, (2) case management powers, and (3) encouragement of joint experts.
In the case protocol, parties have to set out their agreements and undertakings, the issues in dispute, and the steps they plan to take to ensure the proceedings operate smoothly. They have to submit this within 45 days from service of the summons. Ontario’s only similar mechanism is the discovery plan. However, unlike the case protocol which deals with the entire case, the discovery plan only deals with when discovery will take place and its form.
The court in Quebec also has case management powers. The court, on its own initiative or on request of the parties, can convene a case management conference. During the case management conference, the court acquaints itself with the issues and takes appropriate case management measures. The court, however, is not limited to issuing case management orders at the conference—it can do so at any time to simplify or expedite proceedings so that a case progresses adequately and in conformity with the principle of proportionality. Under its case management powers, the court has the power to impose joint expert evidence.
Ontario also has a case management system that gives courts an expansive set of powers over cases in this track; however, unlike in Quebec where all cases are managed by the court, in Ontario the case management system only applies to civil actions commenced in certain regions and only if certain conditions are met.
An analysis of Ontario’s and Quebec’s tools for improving access to justice illustrates the unique ways that these provinces are embracing this cultural shift. What I hope readers take from the article is that there is much to be learned from looking at best practices in civil procedure in other jurisdictions and legal traditions and thinking about how these may be implanted into our respective jurisdictions. These kinds of trans-systemic analyses will be key to tackling the issue of access to justice, which remains a problem in Canada and around the world.