Summary Trial In Court’s Discretion

Summary TrialWhether or not a case is suitable or not to be decided by way of a summary trial is a matter of the court’s discretion depending on an a number of factors.

Cotter v Point Grey Golf and Country Club 2016 BCSC 10 summarized the law:

 

[82]        The suitability of matters for a summary trial has now been considered by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 (CanLII).  In that case, the Court was considering Rule 20.04 of the Ontario Rules of Civil Procedure.

 

[83]        Our Rule 9-7 sets out as follows:

(15)      On the hearing of a summary trial application, the court may

(a) grant judgment in favour of any party, either on an issue or generally, unless

(i)   the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or

(ii)  the court is of the opinion that it would be unjust to decide the issues on the application,

(b) impose terms respecting enforcement of the judgment, including a stay of execution, and

(c) award costs.

Additionally the Rule provides:

(11)      On an application heard before or at the same time as the hearing of a summary trial application, the court may

(a) adjourn the summary trial application, or

(b) dismiss the summary trial application on the ground that

(i)   the issues raised by the summary trial application are not suitable for disposition under this rule, or

(ii)  the summary trial application will not assist the efficient resolution of the proceeding.

[84]        The Court in Hryniak was concerned with whether it would be appropriate for the judge to proceed on summary judgment and examined the part of the rule that discusses whether there is a “genuine issue requiring a trial”.  The Court also examined when it was in the “interests of justice” for the fact-finding powers on such applications, new to the Ontario Rules of Civil Procedure, to be used in a summary judgment motion.  Lastly, the Court considered the power to call oral evidence and the process to be followed on such a motion.  Importantly, the Rule in Ontario differs from the Rule in British Columbia, permitting greater discretion in British Columbia to proceed or not by way of summary trial.  There are also less tools available to a BC court considering a 9-7 summary trial application as opposed to the Ontario version, which is set out in Rule 20.04

 

[87]        At para. 58 in Hryniak, the Court held:

[58]      This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial.  It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial.  This would involve a comparison of, among other things, the cost and speed of both procedures.  (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.)  It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it.  (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)

[88]        In connection with the interests of justice inquiry, the Court held that if it was possible for the judge to fairly and justly adjudicate the claim through a summary judgment, it would be against the interests of justice not to do so.

 

[89]        Hryniak has been considered in British Columbia.  In Crest Realty Westside Ltd. v. W & W Parker Enterprises Ltd., 2015 BCCA 447 (CanLII), the Court of Appeal noted that the decision to proceed by way of summary trial is a matter of discretion, and the Court of Appeal will not interfere unless the discretion was not exercised judicially or exercised on a wrong principal.

[90]        In McLellan v. Shirley, 2015 BCSC 1930 (CanLII), Justice Brown stated that:

[42]      If no genuine issue requires a trial, the court must grant summary trial.

[91]        In Barkwill v. Pachomchuck, 2011 BCCA 207 (CanLII), our Court of Appeal stated:

[14]      The suitability of an action for disposition by way of summary trial depends on whether the evidence is sufficient for the chambers judge to find the facts necessary to give judgment, Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA), 36 B.C.L.R. (2d) 202 (C.A.) at 214-16.

[92]        In N.J. v. Aitken Estate, 2014 BCSC 419 (CanLII), Justice Ehrcke held:

[33]      In my view, Hyrniak v. Mauldin does not change the law regarding summary trials in British Columbia, and does not render the jurisprudence from our Court of Appeal obsolete.

[93]        In the well-known oft cited decision of Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA), 36 B.C.L.R. (2d) 202 (C.A.), Chief Justice McEachern, considering the former Rule for summary trial 18A, held that a number of factors were to be considered in determining the appropriateness of a matter for summary disposition:

[47]      In fact R. 18A substitutes other safeguards which are sufficient to ensure the proper attainment of justice. First, 14 days notice of the application must be given (R. 18A (1.1)); secondly, the chambers judge cannot give judgment unless he can find the facts necessary to decide issues of fact or law (R. 18A(3)(a)); and thirdly, the chambers judge, even if he can decide the necessary factual and legal issues, may nevertheless decline to give judgment if he thinks it would be unjust to do so. The procedure prescribed by R. 18A may not furnish perfect justice in every case, but that elusive and unattainable goal cannot always be assured even after a conventional trial and I believe the safeguards furnished by the Rule and the common sense of the chambers judge are sufficient for the attainment of justice in any case likely to be found suitable for this procedure. Chambers judges should be careful but not timid in using R. 18A for the purpose for which it was intended.

[48]      In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters which arise for consideration on this important question.

[94]        Accordingly, the decision to proceed with a summary trial is a matter for the court’s discretion.  Both cost and complexity are included as factors to be considered.  Credibility also remains an important issue for the court to determine.  Nonetheless, if the court is able to find the necessary facts to justly resolve the matter, the court should proceed to judgment

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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