Summary Judgment – Emerging Burdens of the Summary Judgment Motion Judge

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorCivil Litigation, Commercial, Commercial Litigation, Summary Judgment0 Comments

Summary Judgment – Emerging Burdens of the Summary Judgment Motion Judge[i]

David Alderson[ii], Senior Counsel – Commercial Litigation, at Gilbertson Davis LLP, co-counsel for the 13 plaintiffs (one of which was Mauldin), that responded to the appeal to the Supreme Court of Canada in Hryniak v. Mauldin[iii], that responded below to the appeal in the Ontario Court of Appeal, and that obtained summary judgment in the Ontario Superior Court of Justice, being the judgment which was appealed, has written two chapters of the Annual Review of Civil Litigation[iv], which if read together comprise a seven year survey of the appellate cases across Canada considering Hryniak and summary judgment.

The chapter entitled Sentinels of the Hryniak Culture Shift: Four Years On[v], included in the Annual Review of Civil Litigation 2018[vi] covers appellate cases for the first four years following the Supreme Court of Canada decision. The second chapter Emerging Burdens of the Summary Judgment Motion Judge[vii], included in the Annual Review of Civil Litigation 2021[viii] picks up where the earlier chapter left off, and canvases appellate decisions for the next three years.

The two chapters, a total of 141 pages, can be read together, with the later chapter cross-referencing the earlier one.

A copy of Sentinels of the Hryniak Culture Shift: Four Years On can be accessed here. The second chapter, Emerging Burdens of the Summary Judgment Motion Judge, is not available on this website.

The Overview of each publication included the following:

Annual Review of Civil Litigation – 2021Mr. Alderson’s paper is extremely important for all practicing litigators. His survey is first class and his conclusions must be understood by our legal community.[ix]

Annual Review of Civil Litigation – 2018: Before embarking upon a summary judgment motion, all counsel should carefully read Mr. Alderson’s paper because it provides superb guidance concerning the prospects of success not only before the motions judge but on appellate review. Mr. Alderson’s paper is a comprehensive tour de force for all advocates.[x]

Hryniak has had such a significant impact on civil legal proceedings in the courts in Canada, including with respect to the access to justice, that, in the course of seven years since the decision was released, it has been cited in more than 4,300 reported decisions of the courts in Canada and over 2,600 reported decisions in Ontario alone.[xi]

Please see the corresponding Gilbertson Davis LLP webpage on Summary Judgment, and Appeals of Summary Judgment or Summary Dismissal.

Blog posts concerning summary judgment posted on the Gilbertson Davis LLP Blog can be read here.

The Gilbertson Davis LLP Arbitration Chambers webpage on Moving Summary Judgment motions or Summary Dismissal motions to arbitration appears here.

The lawyers at Gilbertson Davis LLP, including David Alderson, can advise and represent you in matters involving motions for summary judgment in civil legal proceedings or appeals.

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[i] Annual Review of Civil Litigation – 2021, ed. by the Honourable Justice Todd L. Archibald, published by Thomson Reuters Canada Limited, at pp. 397-474

[ii]  David Alderson, LL.B (Osgoode), LL.M (Lond.), Senior Counsel, Commercial Litigation, and Commercial Arbitrator, at Gilbertson Davis LLP, Toronto, Canada; Barrister and Solicitor in Ontario, Canada; Attorney and Counselor-at-Law, New York State (not practicing); former Solicitor of the Supreme Court of England and Wales and Attorney and Barrister-at-Law in Bermuda (while practicing in those jurisdictions). Co-counsel for the plaintiffs in the Mauldin et al. v. Cassels Brock & Blackwell LLP et al. action in the Ontario Superior Court of Justice (the ‘‘Mauldin Group”) on the motion for summary judgment in the Ontario Superior Court of Justice, reported as Bruno Appliance v. Cassels Brock & Blackwell LLP, 2010 ONSC 5490 (decision of Grace J.), co-counsel for the Mauldin Group respondents on the appeal in the Court of Appeal for Ontario from the summary judgment for the Mauldin Group, reported as Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, and co-counsel for the Mauldin Group respondents on the appeal in the Supreme Court of Canada from the order of the Court of Appeal for Ontario, Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 with respect to the Mauldin et al. v. Cassels Brock & Blackwell LLP et al. action, reported as Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7. David Alderson was the Chair / Moderator of Osgoode Hall Law School’s webinar entitled Summary Judgment in the Supreme Court of Canada: Hryniak v Mauldin and Its Implications

[iii] Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 SCR 87

[iv] Annual Review of Civil Litigation, Ed. by the Honourable Justice Todd L. Archibald, published by Thomson Reuters Canada Limited

[v] Annual Review of Civil Litigation – 2018, ed. by the Honourable Justice Todd L. Archibald, published by Thomson Reuters Canada Limited, at pp. 159-223

[vi] Ibid

[vii] Annual Review of Civil Litigation – 2021, ed. by the Honourable Justice Todd L. Archibald, published by Thomson Reuters Canada Limited, at pp. 397-474

[viii] Ibid

[ix] Annual Review of Civil Litigation – 2021, Overview, pp. ix and x, the Hon. Justice Todd L. Archibald

[x] Annual Review of Civil Litigation – 2018, Overview, p. ix, the Hon. Justice Todd L. Archibald

[xi]  Search of “Hryniak” on CanLII performed on November 11, 2021


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About the Author

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and Mediator

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and Mediator, has practiced over 38 years as a commercial and business litigator in diverse matters in the courts and in domestic and international arbitration proceedings in Ontario, England & Wales, Bermuda and Dubai. Also admitted in New York. The ADR Institute of Canada has accredited David as a Qualified Arbitrator. He accepts appointment as a commercial, business, construction, real estate, condo, technology, franchise, employment and marine arbitrator and mediator Bio | Lawyer | Arbitrator | Mediator | Contact

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