Civil Litigation - Summary Judgment - Against Moving Party. Maxwell v. Altberg
In Maxwell v. Altberg (Ont CA, 2023) the Court of Appeal considered an appeal from a summary judgment motion that dismissed a counter-claim for a mortgage balance, and that declined to order a full trial of the matter - thus amounting to a summary judgment 'win' for the respondent:
 The motion judge referred to the two-stage approach set out in Hryniak v. Mauldin, 2014 SCC 7,  1 S.C.R. 87 He found that at the first stage − reviewing the evidence without resorting to the enhanced fact-finding powers in r. 20.04(2.1) of the Rules of Civil Procedure − he “lack[ed] the confidence necessary … to make a finding about whether a payment on the loan in issue was made in 2010”. He further noted that he “face[ed] a record that is little more than the classic he said/she said account of a single historical event. There is little to choose from between the two accounts”.. Graham v. Toronto (City)
 He then turned to the second stage of the Hryniak approach, which involved the use of enhanced fact-finding powers. He did not consider that hearing oral evidence would assist, as the court had the evidence from the witnesses who might have knowledge, and little would turn on the ability to observe their demeanours. Although he considered the Altbergs generally credible, they had no independent recollection of the payment and were simply interpreting a bank book entry. And although he had concerns about Mr. Maxwell’s credibility and reliability, they were not “sufficient … to outright reject his evidence, particularly in the face of such tepid evidence that a loan payment was indeed made in May 2010”.
 First, Ms. Altberg submits that since the motion judge was unable to resolve, under either stage of the Hryniak approach, the key factual issue of whether the 2010 payment was made in respect of the mortgage debt, he should have directed a mini-trial or a trial.
 We reject this argument. Absent an error of law, the exercise of powers under the summary judgment rule are entitled to deference on appeal; this includes when a judge determines there is no genuine issue requiring a trial after comparing the evidence on the summary judgment motion to what would be expected at a mini-trial or a trial: Hryniak, at para. 81. The motion judge was entitled to find that the quality of the evidence at trial would not be different than what was before him, and that little would turn on an opportunity to observe demeanour. He was accordingly permitted to conclude that he could reach a fair and just determination on the merits on the summary judgment motion: Hryniak, at paras. 49-50.
 In our view, the motion judge did not lose sight of the proposition that on a motion for summary judgment, the legal burden is on the moving party to establish that there is no genuine issue requiring a trial. In determining whether that burden was met, the motion judge was entitled to consider who would bear the onus at trial to prove any contested fact. Ms. Altberg does not dispute that, if the matter proceeded to trial, she would bear the burden of proving that Mr. Maxwell made the 2010 payment in respect of the mortgage debt. In light of this, it was open to the motion judge to consider that the evidence adduced by Ms. Altberg was insufficient to prove the 2010 payment and that no evidence adduced at a mini-trial or trial would assist her in discharging this onus. Accordingly, he was entitled to conclude that the moving party had met his burden of proving there was no genuine issue requiring a trial about the limitation period defence.
In Graham v. Toronto (City) (Ont CA, 2022) the Court of Appeal considered the situation where a court, facing a summary judgment motion, is considering giving summary judgment in favour of the respondent. These quotes deal in part with notice to the moving party before that is done:
 As this court observed in Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, at paras. 11-12, summary judgment motions are intended, in part, to achieve fair and just results. Consequently, where a responding party has not filed a notice of cross-motion that seeks summary judgment against the moving party yet the motion judge intends to grant judgment against the moving party, the court must give the moving party some notice of that litigation risk so that the moving party can address it. The lack of such notice may render any resulting reverse summary judgment unfair.
 There are numerous ways by which a court can ensure that, in the absence of a formal cross-motion, a moving party has notice of the litigation risk of a reverse summary judgment, including: (i) in those judicial regions where scheduling a summary judgment motion must pass through some form of triage or practice court, the motion scheduling request form can inquire whether the responding party intends to ask for a reverse summary judgment; (ii) at the start of a motion hearing, the judge can inquire whether a reverse summary judgment will be sought; (iii) if, during the course of the hearing, the judge forms the view that he or she might grant a reverse summary judgment, the judge should so inform the parties to allow them to respond; or (iv) if, during the course of preparing reasons disposing of the motion the presiding judge forms the view that granting a reverse summary judgment might be appropriate in the circumstances, the judge should so inform the parties and afford them an opportunity to make further submissions.
 In the present case, the motion judge adopted the latter approach. While her decision was under reserve, the motion judge emailed counsel to advise that she usually referred to “some well-established precedents in my summary judgment decisions.” She identified four decisions, providing pinpoint cites to specific paragraphs in each. The motion judge requested that counsel inform her if they wished to make submissions on the cases. Counsel advised that they did not wish to make submissions.
 One of the four cases identified by the motion judge was Meridian Credit Union Limited v. Baig, 2016 ONCA 150, 394 D.L.R. (4th) 601, leave to appeal refused,  S.C.C.A. No. 173, with a pinpoint citation to para. 17, where LaForme J.A. wrote:
 I pause to note that Meridian had not brought a cross-motion asking for summary judgment in its favour. However, the motion judge did not err by granting summary judgment. Counsel for the appellant submitted that all of the relevant evidence was before the court and explicitly invited the motion judge to render a decision in favour of either party. Two recent decisions from this court make it clear that it is permissible for a motion judge to grant judgment in favour of the responding party, even in the absence of a cross-motion for such relief: King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, 40 R.P.R. (5th) 26, at paras. 14-15; and Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, 124 O.R. (3d) 171, at paras. 50-52. The motion judge was communicating with counsel for parties, not a self-represented litigant. Her reference to para. 17 of the Meridian Credit Union case clearly put counsel on notice that she was considering granting a reverse summary judgment; there was no other possible reason for the reference. By so doing, the motion judge put the parties on notice of the litigation risk of a reverse summary judgment and afforded them an opportunity to make submissions, which they declined. In those circumstances, we see no unfairness in the procedure followed by the motion judge.