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 43 ince she began practising with Osler Hoskin & Harcourt LLP in Calgary a decade ago, Kelly Osaka has been a front-line witness to the access-to- justice crunch in Canada's courts. As Alberta's popula- tion exploded, so, too, did the demands on court time and judicial resources. Litigation files, meanwhile, became bigger than ever, fuelled by electronic document discovery and other practices that built delays into the system. Osaka's com- mercial clients, who could presumably afford the cost of a lengthy trial, began balking at the prospect and asking for alternatives. So it was a welcome surprise in January 2013 when the Supreme Court of Canada issued a unanimous ruling calling for a "culture shift" in favour of more "timely and affordable access to civil justice." The court's solution to the crisis was the humble summary judgment motion — described in Hryniak v. Mauldin by Justice Andromache Karakatsanis as a "legitimate alternative for adjudicating and resolving legal disputes" not merely a "tool used to weed out clearly unmeri- torious claims or defences." Osaka says, "It was kind of revolutionary." Not only was the country's top court making a forceful bid for change, "but it was a surprise to see the court pushing some- thing that they'd only talked about theo- retically into a more practical applica- tion for lawyers and parties." Two years have passed since the SCC tried to elevate summary judgment to the default procedure in civil litigation. In that time, Osaka and other lawyers have watched closely to see whether the culture would indeed shift into something more proportional, efficient, and innovative. The answer is still uncertain. In Ontario, Alberta, and Saskatchewan, there are signs that Hryniak is hav- ing an impact, encouraging judges and counsel to make use of tools such as fact finding and oral evidence where appropriate in summary proceedings. Elsewhere, the ruling's reception has been cool at best. "The language of Hryniak," says Osaka, "has been picked up in the Ontario courts and in the Alberta courts, where you see not only the masters eloquently describing how summary judgment can help access to justice but also the [Alberta] Court of Appeal and Court of Queen's Bench all now using this language, which is very favourable to this type of motion. In Alberta especially, the courts and coun- sel have just embraced it." In research for the Canadian Bar Association 15 months after the Hryn- iak ruling, Osaka noted the decision had been cited 530 times by courts across the country. That's a large num- ber, she says, considering that two other civil law decisions of the Supreme Court released at the same time were only cited about 30 times each over the same period. A more detailed study by Ted Tjaden L E G A L R E P O RT \ L I T I G AT I O N HUAN TRAN Hryniak two years on The SCC's summary judgment ruling is having an impact on legal practice, but how much varies across the country. By Richard Foot S

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