In 2010, Ontario amended the Rules of Civil Procedure to reform the summary judgment procedure under Rule 20. In Hryniak v. Mauldin, decided on January 23, 2014, the Supreme Court of Canada considered for the first time the interpretation of the amended Rule 20 and commented on the standard of review applicable on an appeal from a motion for summary judgment.

Under Rule 20.04(2), summary judgment must now be granted where there is “no genuine issue requiring a trial with respect to a claim or defence.” The Court interpreted Rule 20.04(2) as follows:

[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

Rule 20.04(2.1) confers new fact-finding powers to a judge hearing a motion for summary judgment. These new powers may be used unless it is in the “interest of justice” that they be used at trial only. Under Rule 20.04(2.2), the motion judge also has the power to hear oral evidence to assist in making findings.

What is the standard of review applicable on an appeal from a motion for summary judgment? The Court held that a motion judge’s determination of whether summary judgment should be granted is a question of mixed fact and law that cannot be overturned absent a palpable and overriding error. Specifically, the Court stated:

[81] In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law, should not be overturned, absent palpable and overriding error, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.

[82] Similarly, the question of whether it is in the “interest of justice” for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors.  Such a decision is also a question of mixed fact and law which attracts deference.

[83] Provided that it is not against the “interest of justice”, a motion judge’s decision to exercise the new powers is discretionary.  Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.

[84] Of course, where the motion judge applies an incorrect principle of law, or errs with regard to a purely legal question, such as the elements that must be proved for the plaintiff to make out her cause of action, the decision will be reviewed on a correctness standard (Housen v. Nikolaisen, at para. 8).