Recent Commentary on Summary Judgment Motions From the Ontario Court of Appeal

In Moffitt v. TD Canada Trust, 2023 ONCA 349, the Ontario Court of Appeal addresses the test for summary judgment motions. Justice Brown, writing for the Court, confirms that a summary judgment motion brought under Rule 20 of the Rules of Civil Procedure has the same test regardless of whether a party has elected for a judge alone trial or a jury trial.

In Ontario, the test for whether granting a summary judgment is appropriate is not concerned with who would act as the trier of fact if a trial is required. The focus is on whether a trial is required.

The test from Hryniak v Mauldin, 2014 SCC 7 remains the law. See para 49 of Hryniak. In that decision, the Supreme Court states that “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.”

The judge must ask:

• Do the claims or defences give rise to a genuine issue requiring a trial? The summary judgment process must enable the judge to make a fair determination on the merits based on the record presented by the parties.
• If a judge concludes that there is no genuine issue requiring a trial based on the evidentiary record before them, then that is a compelling reason to grant summary judgment. (see para 36)
• The question of whether the summary judgment process “is a proportionate, more expeditious and less expensive means to achieve a just result” – requires 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. (see para 55)

Justice Brown notes that with respect to whether a summary judgment is proportionate, expeditious, and less expensive can be difficult to determine in light of the lack of 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.” (see para 57)

Lastly Justice Brown surmises that a better resourced civil case management system could lead to judges concluding that trials are better than summary judgment motions under the Hryniak proportionality analysis. However, we are lacking data about how the Superior Court or Court of Appeal manages and disposes of their caseload.

At footnote 2, Justice Brown concludes that “The lack of detailed, consistent operational data from those courts and the resulting lack of transparency, impedes the ability to understand and then improve the performance of those courts. To gain some understanding of how those courts deal with cases in practice, one is left to resort to the imprecise tool of examining cases reported on CanLII.”

We need more published data on the operations of our courts. But most of all, we need more judges to hear cases in Ontario. As Chief Justice Wagner of the Supreme Court of Canada recently identified, the chronic underfunding of our courts is causing delay in civil and criminal matters. And if left unchecked, this delay will undermine public confidence in our democracy.