The vast majority of civil cases settle before trial. Most lawyers estimate the number to be higher than 90%. That is consistent with my own experience, which is that most cases settle through a process of negotiation (sometimes involving mediators, sometimes not) that occurs several months before trial. 2 or 3 times per year, I prepare for trial and the case settles a few days before the trial begins – sometimes the night before. Once or twice a year, I find myself wearing my robes on a Monday morning, starting a trial.
Before getting to trial, there is always a point where I discuss with my client whether or not a “summary” procedure (where evidence is submitted in writing, by affidavit, following by oral argument in front of a judge) might be used in place of a full trial. In B.C., there are different procedures for “summary judgment” and “summary trial.” Ontario, on the other hand, does not have a separate summary trial rule – their summary judgment rules encompasses elements of both summary judgment and summary trial.
That distinction is worth keeping in mind when considering the Supreme Court of Canada’s recent decision in Hryniak v. Mauldin, 2014 SCC 7, which was released on January 24, 2014. While many of the same principles that apply to the summary judgment procedure in Ontario also apply to the summary procedures we have in B.C., the rules themselves are slightly different.
That said, the decision in Hyrniak will likely have a significant impact on how litigation is conducted in B.C. The court’s comments about access to justice apply across Canada, and lawyers and judges alike will almost certainly be referring to the decision the next time a summary judgment or summary trial application is argued in B.C.
Access to Justice
The focus of the Court’s judgment, written by Madam Justice Karakatsanis, is set out in the first sentence of the judgment and then repeated and developed in the remainder of the first and second paragraphs:
 Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.
 Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.
The clarity of these statements is deceptive – while lawyers and clients have been moving away from conventional trials for many years, our work has always been conducted in the context of the traditional civil justice system, which has, at its core, a full trial as the means of ajudicating a dispute about legal rights. It is interesting (though not unexpected) to see the Supreme Court of Canada suggesting that the emphasis of the civil justice system should not be on conventional trials.
In order to facilitate that shift, the Supreme Court of Canada has modified the approach to summary judgment in Ontario. Like the Summary Trial process in B.C., Courts in Ontario under their Rule 20(2.1) may now weigh evidence, evaluate credibility, and even hear oral evidence from witnesses if necessary. In considering the scope of the Rule, the Supreme Court of Canada has made it clear that judges hearing summary judgment applications must focus on whether a full trial is required in order to determine the dispute:
 While I agree that a motion judge must have an appreciation of the evidence necessary to make dispositive findings, such an appreciation is not only available at trial. Focussing on how much and what kind of evidence could be adduced at a trial, as opposed to whether a trial is “requir[ed]” as the Rule directs, is likely to lead to the bar being set too high. The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers — and the purpose of the amendments — would be frustrated.
Once again, the emphasis on proportionality and affordability is clear.
The Rough Texture of Truth
It remains to be seen whether the decision in Hryniak will have the effect that the Supreme Court of Canada intends. Judges often prefer to make factual findings based on a full evidentiary record – after hearing evidence from both parties, and assessing the witnesses after cross examination. Lawyers generally prefer that as well, especially where the evidence is contentious and there is a genuine dispute about (a) what happened, and (b) the significance of what happened.
When I first read the decision in Hryniak, I was reminded of words of the trial judge in the recent decision of Campbell River Common Shopping Centre Ltd. v. Nuszdorfer, 2013 BCSC 141 – a case where a landlord was claiming against a tenant for non-payment of rent, and the tenants had responded with allegations of misrepresentation. Credibility was an issue, and the judge decided in favour of the tenant. Part of the rationale for doing so was his conclusion that:
Both Ms. Assu and her mother presented as genuine truth-telling witnesses. They did not claim to remember every detail of what transpired. Their evidence had the rough texture of unrehearsed truth.
The “rough texture of unrehearsed truth” is not something that is easily found in an affidavit – which has typically been drafted, re-drafted, and edited many times before being filed with the court. An affidavit typically doesn’t have the same flow (or lack thereof) that comes from a witness sitting in a courtroom giving oral evidence. Given the central role that oral evidence has traditionally played in the civil justice system, there is a natural tendency to prefer evidence from a live witness over written evidence in the form of an affidavit.
The first decision in B.C. to cite Hryniak will certaintly be informative.