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Civil Litigation - General. Moffitt v. TD Canada Trust [discussion of litigation options]
In Moffitt v. TD Canada Trust (Ont CA, 2023) the Court of Appeal canvasses the leading case of Hryniak v Mauldin (SCC, 2014) on basic summary judgment principles, including that it is available in a jury trial:[24] TD submits the approach taken by the motion judge adhered to the principles for summary judgment motions articulated by the Supreme Court in Hryniak, including that court’s call for a “culture shift” in the civil justice system. The language of r. 20 does not preclude bringing a summary judgment motion in a civil jury action. As well, the motion judge properly applied and considered the three factors Hryniak directs a court to consider in granting summary judgment, namely whether the summary process (i) allows the judge to make the necessary findings of fact, (ii) allows the judge to apply the law to the facts, and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result. In applying that approach, the motion judge correctly treated the existence of a jury notice as one factor to consider in determining whether to grant summary judgment, but not the primary one.
B. ANALYSIS OF THE APPLICABLE PRINCIPLES
[25] As this court has not previously considered the issue of summary judgment motions brought in civil jury actions, I propose to start the analysis by examining the broad perspective the Hryniak decision brought to the evaluation of civil adjudication tools. I will then place the civil jury trial within that larger context. Next will follow an examination of the scope of the “right” to a civil jury trial. I then will address the approach motion judges should take when faced with a summary judgment motion in a civil jury trial action. Finally, I will apply the principles to the present case.
Hryniak v. Mauldin: A report card on Ontario’s civil justice system
[26] The most recent “report card” on the health of Ontario’s civil justice system was offered almost a decade ago in the Supreme Court’s decision in Hryniak, a case that focused on how courts should implement the summary judgment rule amendments made in 2010. In setting the context for its analysis, the Supreme Court made several observations about the parlous state of Ontario’s civil justice system:. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued and cannot afford to go to trial: at para. 1;
. Trials have become increasingly expensive and protracted. A conventional trial is not a realistic alternative for most litigants: at paras. 1, 4 and 24;
. A “culture shift” therefore is required to create an environment that promotes timely and affordable access to the civil justice system, in part by moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case: at para. 2; and
. The balance between procedure and access to justice struck by the civil justice system must now recognize that new models of adjudication can be fair and just and that alternative models of adjudication are no less legitimate than the conventional trial: at paras. 2 and 27. [27] Although improving the health of the civil justice system requires greater use of non-trial models of adjudication, the Supreme Court, at para. 28, emphasized that the principal goal of the civil justice system must remain the same, namely:[A] fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. The “menu” of final-adjudication-on-the-merits procedural tools
[28] Ontario’s Rules of Civil Procedure offer litigants a “menu” of procedures for the final adjudication of a case on its merits. While every Ontario litigant is entitled to their “day in court”, that day most likely will not involve a trial, much less a civil jury trial. To provide all civil litigants with “the just, most expeditious and least expensive determination of every civil proceeding on its merits,” as r. 1.04(1) requires, the Rules offer a “menu” of procedural tools from which parties may choose to obtain the final adjudication of their proceeding. The “menu” of such final-adjudication-on-the-merits procedural tools includes the following:. Where the determination of a question of law may dispose of all or part of an action, a party may move before trial for its determination (r. 21.01(1)(a)) or the parties may jointly state a special case: r. 22.01;
. A party may move to strike out the pleading of the opposite party on the basis that it discloses no reasonable cause of action or defence: r. 21.01(1)(b);
. A party may seek to avoid the trial process by choosing to assert its claim by way of an application, rather than by an action: r. 14.05(3). An application is designed to be a faster, less costly procedure than an action. In fact, some statutes require litigants to advance their claims for relief by way of an application, such as the oppression provisions of the Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 248(1);
. Where a litigant asserts a monetary or property claim for $200,000 or less, it can utilize the Rules’ simplified procedure process that culminates in a “slimmed-down”, or summary, trial: r. 76;
. The parties can agree to have their dispute determined by the summary judgment process: r. 20.04(2)(b); or
. One party can seek summary judgment by demonstrating that there is no genuine issue requiring a trial with respect to a claim or defence: r. 20.04(2)(a). [29] Even when a civil proceeding does not settle (as the overwhelming majority do), the Rules’ extensive menu of non-trial procedures available to adjudicate a proceeding, coupled with the increased popularity of the summary judgment motion following r. 20’s 2010 amendments (O. Reg. 438/08), make it more likely than not that a trial will not be the procedural tool that finally determines a civil proceeding.[2] . Barbiero v. Pollack [expeditious proceedings R1.04]
In Barbiero v. Pollack (Ont CA, 2024) the Ontario Court of Appeal dismissed a class action appeal, here where the primary issues were dismissal for delay [R24.01] and the related duty on a plaintiff to move cases along. These quotes are a call from the court to end chronic tolerance for plaintiff delay, and the case can be expected to be cited in similar dismissal for delay cases - and perhaps in other issues, such as costs(?):The obligation of an initiating party to move a proceeding to its final disposition
[6] I begin the analysis by recalling that this court repeatedly observes that the party-prosecution character of our current civil court adjudication system imposes on the party who initiates a claim the burden of moving a proceeding to its final disposition on the merits. As a result, the consequences of any dilatory regard for the pace of litigation falls on the initiating litigant, absent resistance from a defendant to proceed to a final disposition on the merits (of which there is no evidence on the facts of this case): 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, at paras. 28 and 29.
[7] Those principles and consequences apply to all civil proceedings, including actions that are certified as class proceedings: CPA, s. 35.
The legal principles applied by the motion judge.
[8] On the r. 24.01 motion brought by Dr. Pollack, the motion judge applied the principles set out in Langenecker v. Sauvé, 2011 ONCA 803, 286 O.A.C. 268, that an action will be dismissed for delay where the delay (i) is inordinate, (ii) inexcusable, and (iii) results in a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay, whether through an unrebutted presumption of prejudice or by evidence of actual prejudice to the defendant’s ability to have the case adjudicated on its merits.
[9] Ms. Barbiero does not contend the motion judge erred in identifying those as the governing principles; her complaint is that the motion judge misapplied them. Yet, I am troubled that a plaintiff could seek to find refuge in Langenecker to defend her failure to set down an action for trial more than 20 years after its commencement. In my view, that signals the Langenecker approach to delay is out of step with the contemporary needs of the Ontario civil court system.
[10] The principles summarized in Langenecker were drawn from a 1968 decision of the Court of Appeal of England and Wales, Allen v. Sir Alfred McAlpine & Sons, Ltd., [1968] 1 All E.R. 543 (C.A.), 556, which Langenecker quoted at para. 5. Much has changed in the civil court systems of both Ontario and England since 1968. Significantly, Langenecker pre‑dated the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
[11] Hryniak singled out for criticism an unhealthy characteristic of the contemporary Ontario civil justice system: its indifference to delay. In calling for a “culture shift” in the civil justice system, the court in Hryniak stated at para. 25:Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice. [12] Effecting a culture shift requires not only changing the entrenched culture of indifference to delay manifested by far too many litigants and their counsel, but also identifying and changing those judge-created rules or interpretative glosses that do not promote – and in some cases impede – the “prompt judicial resolution of legal disputes”.
[13] Under the Langenecker approach, delay or the passage of time on its own cannot constitute harm or prejudice sufficient to support the dismissal of an action. Langenecker merely treats the existence of delay as giving rise to a rebuttable presumption of prejudice – that is to say, the lingering of an action in our courts for over two decades may or may not result in a harm or prejudice. According to Langenecker, it all depends.
[14] I strongly question whether Ontario’s civil courts can achieve the culture shift demanded by the Supreme Court of Canada in Hryniak if they continue to cling to Langenecker’s lax attitude toward delay. The late Willard Z. Estey, former judge of the Supreme Court of Canada, succinctly described the social harm caused by such an attitude:Disputes, unlike wine, do not improve by aging. Many things happen to cause a cause and to parties in a dispute by the simple passage of time, and almost none of them are good. Delay in settlement or disposal of conflicting claims is … a primary enemy of justice and peace in the community.”[2] [15] As well, Langenecker’s tolerant attitude toward delay is out of step with a key element of the general principle for civil litigation set out in r. 1.04(1) of the Rules of Civil Procedure, namely to secure the “most expeditious ... determination of every civil proceeding on its merits”. A litigation culture based on Langenecker focuses more on justifying delay than on achieving the most expeditious determination of civil proceedings. To the extent that Langenecker denies that the passage of time, on its own, can constitute sufficient prejudice to dismiss an action for delay and not simply a rebuttable presumption of prejudice, it should not be followed.
[16] One must reflect seriously on the health of a litigation culture in which a party, such as the appellant, when brought before the courts, is not prepared to recognize that a delay of over 20 years in moving an action to its final adjudication on the merits is “inordinate” delay but is merely a situation where the “action has moved slowly”, as put in para. 9 of her factum and maintained at the hearing of the appeal.
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