Ontario Superior Court Offers Guidance on Applying Hryniak to Abbreviate Actions
In Baghbanbashi v Hassle Free Clinic, the Ontario Superior Court of Justice forcefully adopted the Supreme Court of Canada’s new credo for summary judgment articulated in Hyrniak v Maudlin.
In the course of case managing the summary judgment process in a complex case, Justice F.L. Myers held that there is no absolute right to a trial in civil litigation in Ontario. Summary judgment should be seen as a meaningful alternative in either party’s toolbox (in this case, a defendant’s) and should not be reserved for only the most obvious or non-controversial cases. If a case can fairly be resolved in its entirety through adjudication of a severable issue, it is quicker, more cost-effective and most certainly in the interests of justice to do so.
Baghbanbashi is a medical negligence action in which the plaintiff alleged her multiple sclerosis was caused by two hepatitis B vaccinations received at the defendant clinic in 2003. She also alleged negligence against a defendant physician for not diagnosing her condition and not warning her against further vaccination at a visit that occurred between the two shots. While standard of care and credibility issues exist, the defendants contend that the case can be entirely disposed of on the question of general causation: that is, whether hepatitis B vaccination does in fact cause multiple sclerosis. The defendant physician moved for summary judgment on that issue, arguing that a failure to prove general causation would prove fatal to the plaintiff’s action and render needless any investigation into her specific circumstances.
The Case Management Conference and Endorsement
Justice Myers convened a case conference to assess the scope of the evidence to be admitted on the summary judgment motion. The moving party, the defendant physician, was concerned that the plaintiff would attempt to expand the scope of the motion to include her specific clinical history and the controversies surrounding that, such that the obvious benefit of adjudicating only the general causation issue would be lost. The physician’s counsel argued that the moving party was entitled to define the issue for adjudication and the plaintiff was required to respond accordingly.
The plaintiff's primary argument was that the case was simply inappropriate for summary judgment. Counsel pointed to the existence of issues of credibility and expert evidence on causation that would need to be tested — traditional hallmarks of a case requiring a trial. Counsel attempted to construe the Supreme Court’s watershed decision in Hryniak as applicable only “in the clearest of cases where the legal issue is uncontroversial and self-evident.” In their view, their plaintiff deserved to exercise her “right to a trial.”
With the amendments to Rules 20.04(2.1) and (2.2) of the Ontario Rules of Civil Procedure, especially as now interpreted by the Supreme Court of Canada, judges’ fact-finding powers have been significantly expanded and can now occasionally adopt the flavour of a trial, if warranted. Motions judges are now empowered to weigh evidence, evaluate credibility and draw reasonable inferences, unless there is a compelling reason for these powers to be exercised only at a trial. Utilization of these tools promotes the possibility of using the summary judgment process even in cases that may have traditionally been considered too fact-specific for such a procedure.
Justice Myers was unpersuaded by plaintiff counsel’s claim based on her “right to a trial,” writing that he “wholly disagree[d] with this old brain thinking.” Summary judgment is not limited to the clearest of cases or the most obvious issues of law, but should be permitted whenever a responsible judge can satisfy himself or herself that justice can be properly served through that process. Motions judges can apply the fact-finding powers newly available to them under the amended Rules — and spare scarce judicial resources by obviating the need for a trial. Justice Myers reminded the parties that the Supreme Court of Canada has heralded a sea change in the summary judgment process in Hryniak, which opens with the words “Ensuring access to justice is the greatest challenge to the rule of law in Canada today.”
The Significance of Baghbanbashi
The Supreme Court has cautioned that access to justice must not be illusory — justice is served only when litigants can indeed seek resolution of legal disputes in a proportionate, timely and affordable manner. Litigants should view Baghbanbashi as an example of the potential power of Hryniak to abbreviate actions in appropriate circumstances. Even factually and scientifically complex cases may contain severable and dispositive legal issues that can be neatly adjudicated in a separate proceeding. Justice Myers reminds litigants of the necessary culture shift that is required to truly embrace the framework defined by Hryniak. This new world order requires a certain amount of procedural reimagining: trials are not always prerequisites to justice.
2014 ONSC 5934 (CanLii)
2014 SCC 7 (CanLii)