February 18, 2014

Access to Justice: Hyrniak and Gamer

Filed under: Uncategorized — ruleswatch @ 12:38 pm


It hasn’t taken long. Just three weeks. And it probably signals important changes in how courts schedule trials and treat trial adjournments in the province.


Hryniak v. Mauldin, 2014 SCC 7,  just released, unanimous, Supreme Court of Canada authority emphasizing that access to justice supports strong and aggressive application of summary judgment is already extending its reach, at least in to Nova Scotia.  Interestingly, though, so far, it is not into summary judgment.


In Garner v. Bank of Nova Scotia, 2014 NSSC 63, Associate Chief Justice Smith has reached to Hryniak’s expression of concern for expeditious process (treated in the decision as a close companion), grasped it and promptly extended it to summary judgment’s polar opposite—post finish date process and adjournment requests.


Hryniak is dated January 23; its projection to the far end of the litigation timeline came in Garner only three weeks later, on February 14, 2014.


Garner signals a more aggressive, defter approach to scheduling trial dates, continuing, and strict controls over adjournment requests and indicates flexibility in the mind, at least of the Associate Chief Justice, which might suggest a willingness on the part of the NS courts to push more for trials or even parts of trials, to salvage court dates.


Hryniak emphasized access to justice in coming to a conclusion supporting, and guiding forward an aggressive and creative summary judgment process mandated by the Ontario Rules and, then, implemented by a five judge summary judgment rationalization process in 2011 ONCA 764


Pointing to the possibilities of enhanced summary judgment for access to justice, Karatzakis J. wrote for the Supreme Court of Canada:


[1]                              Ensuring access to justice is the greatest challenge to the rule of law in Canada today.  …  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. [24]     …undue process and protracted trials…. can prevent the fair and just resolution of disputes.  The full trial has become largely illusory because… ordinary Canadians cannot afford to access the adjudication of civil disputes. [2] The … trial process denies ordinary people the opportunity to have adjudication.  And other dispute resolution mechanisms such as mediation and settlement are more likely to produce fair and just results when adjudication remains a realistic alternative.”


Hryniak  deserves a much closer look on summary judgment.


Garner v. Bank of Nova Scotia, 2014 NSSC 63

Hryniak v. Mauldin, 2014 SCC 7


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