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Civil Litigation - Summary Judgment - General. Moffitt v. TD Canada Trust
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] . D.M. v. The Children’s Aid Society of Ottawa
In D.M. v. The Children’s Aid Society of Ottawa (Div Ct, 2021) the Divisional Court summarized summary judgment basics, here in the context of a self-represented applicant family law case:[177] In Hryniak v. Mauldin[29] and Bruno Appliance and Furniture, Inc. v. Hryniak,[30] the Supreme Court of Canada held that on a motion for summary judgment, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers provided by the rule. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable, and proportionate procedure.
[178] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under the rule. As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case.[31]
[179] If a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial; this will be the case when the summary judgment process: (a) allows the judge to make the necessary findings of fact; (b) allows the judge to apply the law to the facts; and (c) is a proportionate, more expeditious and less expensive means to achieve a just result.[32] The motions judge is required to assess whether the attributes of the trial process are necessary to enable him or her to make a fair and just determination.[33]
....
[185] On a summary judgment motion, the responding party may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party in a child protection proceeding may rely on affidavits he or she has already filed and it is not necessary to repeat evidence that he or she has already given by affidavit in the same proceedings.[41]
[186] The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial.[42] The responding party’s speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a summary judgment motion.[43] . Carmichael v. GlaxoSmithKline Inc.
In Carmichael v. GlaxoSmithKline Inc. (Ont CA, 2020) the Court of Appeal set out the basic approach to summary judgments:[137] I will first summarize the two-step process for a summary judgment motion under Rule 20 mandated by Hryniak. I will then apply that approach to the evidence in this case.
(a) Hryniak’s two-step process for a summary judgment motion
[138] Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides:(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. [139] It is unclear from the motion judge’s reasons and the record before this court whether, in ordering that Mr. Carmichael’s action is not barred by the Act, the motion judge proceeded under r. 20.04(2)(a) or r. 20.04(2)(b). While I will assess the issue under r. 20.04(2)(a), in accordance with the approach in Hryniak, even if I were to proceed under r. 20.04(2)(b), I would still be satisfied that it is appropriate to grant summary judgment.
[140] Hryniak and the companion case of Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, established a two-step process on a summary judgment motion:. First, the motion judge asks whether there is a genuine issue requiring a trial, based only on the evidence before the court, and without using the new fact-finding powers under rr. 20.04(2.1) and (2.2.), to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. There will be no genuine issue requiring a trial when the evidence on the motion allows the judge to make the necessary findings of fact and to apply the law to the facts, and where granting summary judgment is a proportionate, more expeditious, and less expensive means to achieve a just result: Hryniak, at para. 66; Bruno, at para. 22.
. Second, if there is a genuine issue requiring a trial, the motion judge should then ask whether a trial can be avoided by using the new fact-finding powers to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. The motion judge has a discretion to use these powers where it would lead to a fair and just result and would serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole: Hryniak, at para. 66; Bruno, at para. 22. [141] Hryniak did not change the established evidentiary obligation on a motion for summary judgment for each party “to put its best foot forward”: see Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434, aff’d [1997] O.J. No. 3754 (Ont. C.A.); 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, 83 B.L.R. (5th) 186, at para. 49, leave to appeal refused, [2018] S.C.C.A. No. 391. The summary judgment judge is entitled to assume that the evidentiary record is complete and that no more evidence would be available at trial: see Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 17; Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292, 137 O.R. (3d) 570, at para. 54; and Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438, 80 C.C.L.I. (5th) 23, at para. 7.
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