When the Supreme Court of Canada decided Hryniak v. Mauldin over 6 years ago, it gave promise for more expeditious litigation. Judges could move cases swiftly to a final disposition, without the need for a full trial, by using their new fact-finding powers on motions for summary judgment.  The Supreme Court directed that where the summary judgment motion fails, the motion judge should become seized of the trial unless there are compelling reasons against it.

This is the procedural approach taken by Justice Andrea Pollak in Sun v. Ferreira, 2020 ONSC 4316, when she dismissed two summary judgment motions.  The case involved a 13 year old child struck by an approaching vehicle as he crossed a roadway from a TTC bus stop on his way to school. The defendants to the main action, and the defendants to a third party action brought by the defendant driver against the TTC and the City of Toronto, raised limitation defences. At issue was when the respondents discovered or ought to have discovered all the requisite material facts to bring a legal action, including the alleged deficient design of the bus stop and nearby crosswalks.   

Justice Pollak dismissed both motions, finding that the plaintiffs had established genuine discoverability issues for trial.  Justice Pollak reviewed the plaintiffs’ submissions, including evidence in the police file and when the plaintiffs became aware that the City installed traffic lights at the accident scene following the accident. She then considered the moving parties’ submissions and evidence. The defendant driver and the TTC argued that the plaintiffs knew or ought to have known to commence a cause of action on the date of the accident. The plaintiffs and the defendant driver knew the location of the bus stop. They frequented the intersection prior to the accident. At the latest, argued the moving parties, the plaintiffs would have discovered a cause of action when they received the police file containing investigation notes and surveillance video. 

Justice Pollak found a genuine issue for trial as to when the plaintiffs knew or ought to have known of the design deficiencies at the intersection. She then determined that she could not fairly resolve the issues in dispute based on the evidence before her, and thus the issue required a trial. Citing the Supreme Court’s directive in Hryniak v. Mauldin, Justice Pollak seized herself of the trial. She made this ruling on the condition that her unavailability would not delay the trial.  

Justice Pollak’s procedural ruling is unusual because since the Hryniak v. Mauldin decision, judges have uncommonly followed the Supreme Court’s directive by becoming seized of the trial. A practical obstacle may be the difficulty of scheduling the motion judge to hear the trial without the parties needing to wait years for a trial. This is the opposite of what the Supreme Court envisioned for unsuccessful summary judgment motions – greater continuity and efficiency where the motion judge also manages an action to trial, sets timetables, restricts discovery and oral testimony, and is familiar with the issues.  Justice Myers in Meagher v. Hooper-Holmes Canada Limited, 2020 ONSC 4480 recently commented that it is a judge’s obligation upon dismissing the motion to be seized of the matter and “consider appropriate procedural orders to move the case forward with alacrity”. While this case shows that not every liability or discoverability case can be decided by way of summary judgment motion in advance of trial, it is clear that summary judgment motions are another tool in a defence counsel’s tool box to be considered in the appropriate circumstance.

Jonathan White is an associate at the firm and author of this blog. If you have a question about this decision or a similar file, please contact Jonathan at 416-777-5204.