Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J A N U A R Y 2 0 1 6 45 uptake on this wasn't more," says Tjaden, a research specialist based in Toronto. He says part of the problem may be that in smaller Ontario cities, judges may be on circuit, making it impractical for them to remain seized of a case in a location they might not return to for months. In other situations, counsel may not have even raised the issue. Tjaden says as of November 2015, Hryniak had already been cited almost 460 times across Canada in the second year following its release, meaning the number of year-two citations was on pace to outstrip those from year one. And likewise in year two, he says, "my prediction is that we'll see an uptick in judges remaining seized." Outside Ontario, the story of Hryniak's impact is a mixed bag. Alberta and British Columbia already had expansive summary disposition regimes before Hryniak's arrival. While the decision seems to have encouraged practitioners in Alberta, and to a lesser extent the other prairie provinces, to apply the process more robustly, the opposite appears true in B.C. For example, the Alberta courts cited Hryniak 66 times in year one alone, while in B.C. the decision was cited only seven times in two years. Perhaps the difference lies in the fact that for decades B.C. has been home to the most wide-ranging summary trial regime in the country. With Hryniak principles already long embedded in the province's rules, the decision is unlikely to change the landscape in B.C. "The policies expressed in Hryn- iak have been actively part of our practice for about 30 years," says Ken McEwan, an experienced member of Hunter Litiga- tion Chambers in Vancouver. "I haven't seen that Hryniak has had any significant impact on how we do things day to day." That's not to say there isn't an access-to-justice problem in B.C., in spite of its generous summary trial rules — proving, says McEwan, that summary disposition is no panacea. He says if Hryniak accomplishes anything on the West Coast, it will serve to push counsel and judges out of their comfort zone of conducting summary trials strictly on the basis of large volumes of affidavit evidence, when in fact the rules allow for far more creativity. "We don't use enough hybrid procedure, for example, setting aside time to call a wit- ness or cross-examine a witness," says McEwan. "I hope that will happen over time." On the other side of the country, Hryniak hasn't made a serious impact either. Nova Scotia's very restrictive summary judgment rules limit the process to a gatekeeper function of keeping unmeritorious claims out of the system. Elsewhere in Atlantic Canada, the summary judgment rules are more open. Yet, with smaller populations, a lower volume of cases, and far fewer demands on judicial resources, the problem that Hryn- iak seeks to address isn't as fully relevant across the region. "In Newfoundland, there isn't the same institutional problem with access to justice," says Joe Thorne, a litigator with Stewart McKelvey LLP in St. John's. "So there hasn't been a cultural shift in the Atlantic provinces, post-Hryniak." Still, Thorne says the Supreme Court was correct to call for a change in attitude among players in the system right across the country. Having once worked as a litigator in Toronto, he remembers the pressures of trying to secure court time in that city for a full trial. "In 2013, before I left Ontario, if you wanted to get a one-week trial in Toronto, you were looking at a year-and-a-half to two years from the date of your applica- tion," he says. "When I came home to Newfoundland, the idea that I could call the court and not only get time fairly quickly but actually get a live human on the other end who would answer my questions — it was manna from heaven." Perhaps the cultural shift sought by the Supreme Court won't appear radically, via institutions as a whole, but quietly and gradually, through individuals working inside those systems, as they consider the opportunities highlighted by Hryniak. Karabus says the decision has forced him to think seri- ously about summary judgment as an option in his Toronto practice. "Lawyers in this province know that resources are limited," he says. "Hryniak definitely gives you pause for thought. It makes you think differently about summary judg- ment, both how it has been expanded and how its limits are set. I think every lawyer in Ontario has had that thought." Even in Newfoundland, where judicial resources are less scarce, Thorne believes Hryniak matters. "Its overarching statements about accessibility, efficiency, and proportional- ity — those issues are important for every litigator in every jurisdiction. "It used to be that summary judgment was the alternative to a trial. I'd like to see a scenario where it becomes the first thing you think of, as opposed to the second." What do your clients need? The means to move on. Guaranteed ™ . Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES Untitled-1 1 13-09-16 2:53 PM

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