Opinion: Manitoba Should Look to Ontario’s Lead in Summary Judgment Availability

Written by Calvin Ediger

Summary judgment motions are a powerful tool in the hands of modern courts that can greatly decrease the cost and time commitment of court proceedings for litigants. The Supreme Court endorsed summary judgment as a substitute for full trials in the case of Hryniak v. Mauldin, a case that arose in Ontario with regards to that province’s rules regarding summary judgment. In that case the court found that full trials had become an illusionary concept in terms of a reachable and adequate means of decisions when it came to the disputes of ordinary Canadians.[1]

Further, though arbitration exists as a dispute resolution that lies outside of the courts, this means of dispute resolution was found by the court to be lacking. Namely, arbitration does not enable the development of common law and so threatens the rule of law in Canada.[2] Summary judgment on the other hand allows for rulings to inform the development of common law whilst also providing for ordinary Canadians to have a swifter and more cost-effective means of dispute resolution.

Though summary judgment may not be appropriate in all cases, the Supreme Court developed a framework to ensure it remains a tool in the hands of judges. Manitoban courts have adopted this framework in Dakota Ojibway Child and Family Services et al v. MBH, which endorsed the Supreme Court’s framework in the Manitoba context.

The Manitoba Context

However, work remains to be done in Manitoba to realize the full utility of summary judgment rules. Ontario retains a much broader array of powers for judges when it comes to summary judgment, which allows the courts to expedite the trial process not only in cases of summary judgment but also when a full trial is warranted.

Rules 20.04 (2.1-5) and 20.05 of the Ontario Rules of Civil Procedure allows a judge who denies a ruling in favor of summary judgment special powers to specify material facts that they found were not in dispute and further define the issues which should go to full trial. Specifically, these rules allow a judge to narrow the issues that will go to full trial and make findings with regards to what are the only genuine issues to be heard at a trial.

These rules serve to expedite the full trial process even when a summary judgment is not found to be appropriate. They are therefore useful in reducing the time and accordingly the expense that litigants must face during a full trial. With regards to the above-mentioned Ontario rules, the Supreme Court specifically noted that:

These powers allow the judge to use the insight she gained from hearing the summary judgment motion to craft a trial procedure that will resolve the dispute in a way that is sensitive to the complexity and importance of the issue, the amount involved in the case, and the effort expended on the failed motion.[3]

Manitoba for its part does allow summary judgment in the Court of Queen’s Bench Rules. However, the province lacks corresponding rules to the Ontario Rules of Civil Procedure rules 20.04 (2.1-5) and 20.05. Thus, though a summary judgment may be allowed in Manitoba, judges lack specific enabling powers to expedite procedures that go to full trial.

Though judges’ inherent jurisdiction and general powers under Rule 2 of the Court of Queen’s Bench Rules can enable much of what the corresponding rules in Ontario can enable, explicit powers are often more effective in realizing access to justice.[4] This remains a gap in Manitoba law, and one which remedied would reduce the burden on litigants for whom full trials are necessary.

[1] Hryniak v. Mauldin, 2014 SCC 7 at para 5.

[2] Ibid, at para 26.

[3] Ibid, at para 77.

[4] Gerard Joseph Kennedy, “Hryniak, the 2010 Amendments, and the First Stages of a Culture Shift?: The Evolution of Ontario Civil Procedure in the 2010s”, PhD Dissertation, Faculty of Graduate Studies, York University, January 2020 at, e.g., 261-263.

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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