Civil Litigation - Summary Judgment - General (2). 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:
 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.. G.S. v. Toronto Police Services Board
B. ANALYSIS OF THE APPLICABLE PRINCIPLES
 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
 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; 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:
. 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.
[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
 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; 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.
. 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).
In G.S. v. Toronto Police Services Board (Div Court, 2022) the Divisional Court set out the requirements of a summary judgment motion:
 The parties also agree there will be no genuine issue requiring a trial when the summary judgment process:. Ntakos Estate v. Ntakos
(1) allows the judge to make the necessary findings of fact; Specifically, there will be no genuine issue requiring a trial if the summary judgment process provides the motion judge with the evidence required to fairly and justly adjudicate the dispute, and is a timely, affordable and proportionate procedure: Hryniak, at paras. 49 and 66.
(2) allows the judge to apply the law to the facts; and
(3) is a proportionate, expeditious and less expensive means to achieve a just result.
In Ntakos Estate v. Ntakos (Ont CA, 2022) the Court of Appeal considered a court's discretion to hear oral evidence in deciding whether there is a genuine issue for trial when hearing a summary judgment motion:
 In addition, I see no merit to the appellants’ argument that the motion judge should have allowed them to conduct a viva voce cross-examination of Gus. On a motion for summary judgment, r. 20.04(2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, gives a motion judge the power to order oral evidence. However, this is an exercise of discretion: Hryniak v. Mauldin, 2014 SCC 7,  1 S.C.R. 87, at para. 68. In this case, it was open to the motion judge to decide that oral evidence was not required for him to determine that the appellants failed to put forward evidence that the settlements were obtained fraudulently or that they were unaware of the fraudulent conduct alleged in the 2019 proceedings until the release of the 2018 Tax Court decision.