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Toronto appellate lawyer Brian Radnoff says it is “somewhat surprising” that the SCC has decided to hear two civil fraud appeals which were part of an omnibus ruling that put forward a new approach on summary judgment only pertaining to Ontario.
The top court has agreed to hear the appeals involving Toronto businessman Robert Hryniak, which were part of the Ontario Court of Appeal’s ruling that created the new “full appreciation test.”
“ It was somewhat surprising that the SCC decided to hear the appeals as they relate to what is essentially a matter of practice in Ontario, when summary judgment is available, which is not necessarily a national issue because the rules for summary judgment vary among the provinces,” says Radnoff, a partner at Lerners LLP.
“However, given the increasing prevalence of summary judgment in litigation, particularly commercial litigation, and that it has been some time since the SCC last considered the issue, it is not a complete surprise,” says Radnoff.
“Although the practice of summary judgment motions in Ontario is not of national importance, the general availability of summary judgment is a national and important issue,” he notes. “Moreover, given the different decisions in the two very similar appeals considered by the OCA at the same time, it is understandable the court might find these two appeals a good vehicle through which to make some general comments about the availability of summary judgment.”
Radnoff says it’s a “good opportunity” for the court to make such comments “in an interesting case, in the context of summary judgment’s increasing importance in litigation and the attempts to liberalize summary judgment in some of the provinces.”
He notes that, “the OCA’s approach does not seem entirely consistent with the intention of the new rules, which was to liberalize the summary judgment test and make summary judgment more available.
“Moreover, the OCA’s approach gives the motion judge significant discretion, meaning it is difficult to predict how it will operate in practice,” says Radnoff. “Further, the standard of review for the motion judge’s determination if the full appreciation test is met is a low standard, correctness, meaning an appellate court can more easily reverse the decision.
“This standard of review is not really consistent with a discretionary decision, which normally attracts a more deferential standard of review, reasonableness. I would like to see some more clarity about the test under the new rules and the standard of review for an appellate court,” says Radnoff.
Meanwhile, he notes the OCA’s decision stands until the SCC says otherwise. In fact he’s “arguing an appeal on this issue next month, and the proper law is that set out by the OCA.”