Trial or Summary Judgment?

November 7, 2016


Summary judgment motions have undergone a sea change in the past six years.

First there was the Rule 20 amendment in 2010, these followed following the recommendations of a groundbreaking 2007 report from the Honourable Coulter A. Osborne, Q.C.Q. .The hope was to give litigants a more efficient, judicious process.

Then, in 2014, the Supreme Court of Canada released the gravity-altering Hryniak v Mauldin decision. The unanimous Court issued a clarion call for a cultural shift in Rule 20 summary judgments, a change in perspective.

Where does this leave us today? The Rule 20 amendment brought with it an increased volume of motions for summary judgment. Hryniak laid down clear law on when they should be granted. Yet, it still remains challenging for lawyers to judge whether a matter should proceed by trial or by summary judgment.

This paper will look at the common law that has developed post-Hrynzak and offer some tips to help ease the lawyer’s task in deciding whether to move for summary judgment or go to trial.