Civil Litigation Dicta - Summary Judgment - Jury Trials. Moffitt v. TD Canada Trust
In Moffitt v. TD Canada Trust (Ont CA, 2023) the Court of Appeal considers the case for summary judgment where the plaintiff has served a jury notice:
Summary judgment motions in civil jury actions
 The appellants properly acknowledge that the delivery of a jury notice does not preclude a court from granting summary judgment in an action. Their acknowledgment is proper for two main reasons.
 First, the plain language of r. 20.01 permits either party in any civil action to move for summary judgment following the delivery of a statement of defence. The rule does not carve out from its reach actions in which a party has served a jury notice.
 Second, under Ontario law a court may interfere with a party’s election of a jury trial for “just cause or compelling reasons.” Rule 20 provides such a compelling reason. As explained in Hryniak, at para. 45, the amendments implemented to r. 20 in 2010 were designed to transform the rule “from a means to weed out unmeritorious claims to a significant alternative model of adjudication.” A motion under r. 20 prompts an evidence-focused assessment of the claims or defences raised in an action. Such a motion requires the judge to ask: Do the claims or defences give rise to a genuine issue requiring a trial? If, on a consideration of the evidentiary record, a court concludes that no genuine issue requiring a trial exists, the absence of such a genuine issue is a compelling reason why the action should not proceed to trial, including where one party has elected a jury trial.
 The critical examination of the evidentiary record conducted by a court on a r. 20 motion offers the prospect, but not the certainty, of a final adjudication of a claim or defence on the merits without going to trial. Where a genuine issue requiring a trial exists, the motion will be dismissed and a trial will ensue. Conversely, however, r. 20.04(2)(a) requires that a court “shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” (Emphasis added).
 One of the most significant amendments implemented to r. 20 in 2010 was the expansion of the motion judge’s evidence-weighing and fact-finding powers as part of the assessment of whether a genuine issue requiring a trial exists. Rules 20.04(2.1) and (2.2) describe what are styled as the “enhanced powers” a judge may exercise in determining whether a genuine issue requiring a trial exists:
(2.1) In determining under [r. 20.04(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: Hryniak described how a judge should apply the amended r. 20. First, Hryniak identified the test, or criteria, a motion judge should apply to ascertain whether, on the evidentiary record, a genuine issue requiring a trial exists. Second, the decision set out the methodology a judge should follow to make such an assessment.
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.
 As to the test to be applied, Hryniak stated, at para. 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. As to the methodology a judge must follow when determining whether a genuine issue requiring a trial exists, Hryniak laid out a two-step approach. First, judges should decide if there is a genuine issue requiring trial based only on the evidence before them, without using the enhanced fact-finding powers enumerated in rr. 20.04(2.1) and (2.2). If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under rr. 20.04(2.1) and (2.2). A judge may exercise those powers provided their use is not against the interest of justice. While analytically distinct, as a practical matter these two steps often blend together or follow closely upon each other during the hearing and adjudication of a summary judgment motion.
 At the conceptual level, r. 20 concerns itself with a simple question: Does a specific action require a trial for its fair and just determination on the merits? Rule 20 is not concerned with who should act as the trier of fact in the event it is found that a trial is required; its focus is on whether a trial is required. In light of r. 20’s focus on whether an action requires a trial for resolution, not on who should act as the trier of fact at a trial, Hryniak’s test and methodology apply equally to civil jury actions and to actions that contemplate a trial by judge alone.
 It follows that I do not accept the appellants’ submission that summary judgment motions in a civil jury action should apply the special test spelled out in Roy, at para. 38, namely that summary judgment should only be granted in a civil jury action where the evidence is such that no reasonable jury properly instructed could find for the plaintiff. I am not persuaded by the appellants’ submission for several reasons.
 First, adopting a special summary judgment test for civil jury actions would create two categories of summary judgment motions – those brought in civil jury actions and those brought in all others – a distinction that finds no support in the language of r. 20.
 Second, the creation of two categories of summary judgment motions would undermine the needed culture shift directed in Hryniak by impeding the development of adjudication models that offer timely and cost-effective alternatives to conventional trials, whether judge alone or with a judge and jury. As the Supreme Court made clear in Hryniak, at para. 43, the 2010 amendments implemented to r. 20 demonstrate that “a trial is not the default procedure” for adjudicating a civil dispute. The goal of Hryniak’s culture shift is to strike a proper balance between procedure and access in the civil justice system by recognizing that simplified and proportionate procedures for adjudication can be fair and just, without the expense and delay of a trial: at paras. 2 and 27. As the Supreme Court confirmed, alternative models of adjudication are no less legitimate than the conventional trial.
 In Cowles v. Balac, this court stated, at para. 38, that “It makes sense that neither party should have an unfettered right to determine the mode of trial.” So, too, neither party should have a right to carve-out its civil action from the application of Hryniak’s principles.
 Third, the appellants’ proposed special test essentially would replace the Hryniak test and methodology with the much narrower test used for a directed verdict in a civil trial. The appellants’ proposed special test would eliminate the role of the broad fact-finding powers introduced into r. 20 in 2010 and throw out the proportionality factor that plays such a critical role in Hryniak’s r. 20 test. By so doing, the special test would effectively immunize actions with jury notices from the pre-trial scrutiny enacted by the 2010 amendments to r. 20.
C. APPLYING HRYNIAK’S TEST AND METHODOLOGY IN CIVIL JURY ACTIONS
 Over the past decade an extensive jurisprudence has developed around the application of Hryniak’s three-factor test and methodology. That jurisprudence applies with equal force to summary judgment motions brought in civil jury actions. There is no need to repeat the jurisprudence. However, motion judges should keep several points in mind when applying Hryniak’s test and methodology in a civil jury action.
 First, it must always be recalled that r. 20 has assigned to judges, not juries, the job of determining prior to a trial whether a genuine issue requiring a trial exists. For a judge to perform that task does not somehow undermine a party’s “right” to a jury trial. On the contrary, performance of that task fosters the overarching goal of the civil justice system “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”: r. 1.04(1). As explained, the absence of a genuine issue requiring a trial constitutes a “compelling reason” for a court to interfere with a party’s election of a jury trial. Any party who seeks a trial of their action must be prepared to have their claims or defences examined under r. 20. Parties who have elected a jury trial do not enjoy immunity from such scrutiny.
 Second, the first and second factors in Hryniak’s summary judgment test require motion judges to determine whether the summary judgment process, including r. 20’s enhanced fact-finding powers, allows them to make the necessary findings of fact and apply the law to the facts. The focus must be on whether the summary judgment process enables a fair determination on the merits in light of the record presented by the parties, not on who should be the trier of fact in the event it is determined there exists a genuine issue for trial. A motion judge must ask the same question whether faced with a summary judgment motion brought in a civil jury action or an action that would proceed to trial before a judge alone, namely: Is there something about the nature of the findings of fact and application of the law to the facts needed to decide the “live issues” in the action that would lead the judge to lack confidence that the summary judgment process would enable a fair and just determination of the action?
 At some point, the number of findings of material fact required to determine a case’s “live issues”, the number of witnesses needed to provide the evidence upon which those findings can be made, the centrality of issues of credibility and reliability to making those findings, and the presence or absence of a documentary record against which to measure affidavit or oral evidence may move the needle past the point where the summary judgment process could reach a fair and just determination on the merits. Such a conclusion would result from the motion judge’s assessment about the fairness of the summary judgment process applied to the particular record presented, not from a consideration of who the ultimate trier of fact might be at a trial. Again, the issue on a summary judgment motion is whether a trial is required to determine the merits of the particular case, not who might act as the trier of fact in the event a trial is required.
 Third, summary judgment motion judges must take care not to conflate their r. 20 analysis with the analysis employed on a motion to strike out a jury notice. Take, for example, the issue of the complexity of a case. Complexity in regard to the facts and the applicable legal principles often is a consideration in whether a jury notice should be struck. In the context of a summary judgment motion, complexity of the evidentiary record may lead a motion judge to conclude that the r. 20 process cannot enable a fair and just determination on the merits which, instead, requires a more trial-like process. The factor of complexity operates differently in each circumstance. In a motion to strike out a jury notice, complexity concerns the ability of jurors to understand and analyze the evidence and the law. By contrast, complexity in a summary judgment motion concerns whether a more fulsome adjudicative process is required to elicit and test the evidence. The consideration of complexity in each situation must remain analytically distinct.
 Fourth, there has been some suggestion in the case law that on a summary judgment motion in a civil jury action, a motion judge should only use the enhanced fact-finding powers granted by rr. 20.04(2.1) and (2.) in an “exceptional case”. To do otherwise, it is argued, would effectively usurp the fact-finding role of the jury.
 I do not agree. Hryniak provides extensive guidance to motion judges on the use of their enhanced powers: at paras. 52-65. That guidance applies equally to summary judgment motions brought in civil jury actions. The decision either to use the expanded fact-finding powers or to call oral evidence is discretionary: Hryniak, at para. 68. But, like all discretionary powers, the decision whether or not to use the enhanced fact-finding powers must be made in furtherance of the purpose of r. 20. Consequently, by using their enhanced fact-finding powers motion judges do not “usurp” the role of the jury. To conceive the matter in that fashion is to ignore Hryniak’s teaching that summary judgment is a different, alternative model of adjudication to a trial: at paras. 34 and 45. By exercising r. 20’s enhanced fact‑finding powers a motion judge does not usurp any function of the jury because a jury has no role to play under the Rules in determining, prior to trial, whether a genuine issue requiring a trial exists.
 Finally, the third element of the Hryniak test – whether the summary judgment process “is a proportionate, more expeditious and less expensive means to achieve a just result” – necessarily will require a motion judge to compare, in the circumstances of the particular case, the advantages and disadvantages, costs and benefits of using the summary judgment process to determine the case as compared to using the jury trial. This may include a consideration of the opportunity to fairly evaluate the evidence using each process: Hryniak, at para. 58.
 Not only will this aspect of the Hryniak test require a case-specific analysis, it most likely will also require a Region-specific analysis as the judicial resources available for summary judgment motions and civil trials seem to vary from judicial region to region in this province.
 As noted in fn. 2 above, it is unfortunate that judges (and the public) lack access to published data about how the Superior Court of Justice manages its caseload. This lack of data makes it very difficult to determine with any accuracy the average time it takes for a civil jury action to proceed from its commencement to a verdict, a piece of information important to any proportionality analysis conducted under the Hryniak summary judgment test.
 Of course, the judge managing a summary judgment motion should have access through counsel and the local court staff to some case-specific information for a Hryniak proportionality analysis: such as, the history of the specific piece of litigation; the local “time-out” times to hearing dates for a summary judgment motion and a jury trial; the anticipated amount of pre-motion or pre-trial management time that the case will require; and estimates of the costs of conducting a summary judgment motion as compared to conducting a jury trial.
 While the results of a Hryniak proportionality analysis will turn on the specific facts of an action, I suspect that at the present time civil jury actions may not fare well in a proportionality analysis when they are compared to summary judgment motions; the delays in moving a civil jury action to trial and the length of such trials might work against them. Yet, the improved timeliness for criminal trials since the imposition in R. v. Jordan, 2016 SCC 27,  1 S.C.R. 631, of a presumptive time ceiling of 30 months for cases in the superior courts demonstrates that it is possible to change litigation habits and achieve more expeditious justice, even where jury trials are involved. While civil cases are not subject to a constitutional ceiling such as that established in Jordan, I suspect that a better-resourced civil case management system could achieve a similar change in litigation habits so that the civil jury trial could compare more favourably to a summary judgment motion in a Hryniak proportionality analysis.
 That said, a motion judge must always recall that summary judgment motions can spawn their own delays and unduly increase costs. Proportionality of process is not achieved if the result of a summary judgment motion is to replace a sprawling, lengthy, and very expensive jury trial with a sprawling, lengthy, and very expensive summary judgment motion.