The Supreme Court of Canada released it’s decision in Hryniak v Mauldin last year and it’s impact is being felt across litigation circles and particular in complicated actions like environmental litigation.

The ability to launch a motion for summary judgment, while in most situations will increase access to justice and ensure proportionality in legal processes, can now have a chilling effect on the litigation of complex issues. Recent decisions have seen courts toss aside actions for failure to show sufficient evidence at hearing of a motion for summary judgment.

In the litigation of complicated issues requiring evidence of cause and damage related to pollution or contamination, there is almost always a reliance on expert evidence. The formulation of this evidence is usually furthered by full and fair disclosure between the parties. The ability to launch a motion for summary judgment before disclosure can handicap plaintiffs, particular where key facts necessary to show causation and damage lie in the hands of the defendant.

The Hryniak decision and the subsequent interpretation of that decision by courts have, in instances where there is a reliance on experts and particularly where key information in the hands of the defendant has not been disclosed, can actually serve to limit access to justice for those impacted by pollution or other environmental issues.

Combining this with the Inco case on damages and the bar to even get to trial has become significantly higher. Plaintiffs must be prepared to and able to present a significant portion of their case prior to any trial. In instances where judges use their fact finding powers under Rule 20, this ‘summary trial’ can put significant onus on the plaintiff to establish his/her case. It also puts significant reliance on the judge to search for and find the necessary facts and evidence that would otherwise be found through a more fulsome discovery process.

Environmental litigants need to be aware of this higher bar and many may rethink their action where the issues are overly complicated and/or where evidence lies in the hands of the defendants.  Environmental counsel will now need to be even more adept at distilling environmental issues into precise facts and combing through complicated or incomplete expert evidence to pick out the necessary elements needed to support an action through an early motion for summary judgment.

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