Availability of Summary Judgment in a Civil Jury Action, Law360 Canada (June 22, 2023)

(this article originally appeared in Law360 Canada, part of LexisNexis Canada Inc. on June 22, 2023)

By Nikolay Y. Chsherbinin

A motion for summary judgment is a procedural tool that enables litigants to obtain judgment without the forensic machinery of a trial. Section 108(1) of the Courts of Justice Act (CJA) grants a civil litigant a substantive right to have issues of fact to be tried or the damages assessed by a jury. Courts would not interfere with that right without compelling reasons.

This regime begs a vexing question of whether a motion for summary judgment can be brought in an action where a party has delivered a jury notice. In Moffitt v. TD Canada Trust, 2023 ONCA 349 (Moffitt), the Court of Appeal for Ontario observed that “this court has not previously considered” that issue and proceeded to tackle it head-on. The court resolved that it is permissible to bring a summary judgment motion, because the existence of a jury notice is one of many factors, but not the primary one, to consider when determining whether to grant summary judgment. The court noted that 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, because the Ontario Rules of Civil Procedure (Rules) offer civil litigants a “menu” of procedures for the final adjudication of the case on its merits.

In s. 108, the CJA sets out qualifying criteria, when a civil action may be tried by a jury. Notably, a jury trial is not available in all civil actions. The option of a civil jury trial is a limited one, because the CJA precludes jury trials in a large number of actions that seek prescribed relief and in simplified proceedings under Rule 76. Where an action qualifies for a civil jury trial, a party must elect a jury trial by filing a formal notice. However, under Ontario law a court, on a motion, may set aside that election at the request of the other party if just cause or compelling reasons exist. Therefore, much as in the case with a summary judgment motion, the right to a jury trial is subject to the overriding interests of the administration of justice and issues of practicality.

In Moffitt , the appellant, Bruce Moffitt, suffered a vicious assault one evening when he was using an ATM located in the vestibule of one of the Toronto branches of the respondent, TD bank. Moffitt was left with serious injuries: he was in coma for a month; hospitalized for four months and, inter alia, suffered a traumatic brain injury to a point that he could not testify about the event. The assault was captured by video cameras at the ATM. In May 2015, Moffitt commenced his action and served a jury notice. As part of his action, he sought damages against TD based on negligence and breach of the Occupier’s Liability Act. Following the discoveries, TD launched a summary judgment motion. Moffitt took the position that it would be inappropriate to decide the issue of TD’s liability on a paper record and argued that the matter was too complicated to be dealt with by way of a summary judgment motion, and that it should proceed to a trial by judge and jury. The motion judge disagreed.

Before the motion judge, Moffitt acknowledged that the delivery of a jury notice does not preclude a court from granting summary judgment. However, he argued that a “special test,” which is spelled out in Roy v. Ottawa Capital Area Crime Stoppers, 2018 ONSC 4207, para 38 (OSCJ) (Roy), should apply in a civil jury action. Moffitt further argued 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. The motion judge disagreed that “special test” should apply on summary judgment motions brought in civil jury actions because that would be inconsistent with the test of Rule 20 and the direction of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 (Hryniak), that summary judgment should be granted when it is just and proportionate to do so. Consequently, the motion judge concluded that the existence of a jury notice is simply one of many factors to be considered.

On appeal, Moffitt argued that the motion judge failed to apply the special test to his assessment of TD’s liability and that his approach was overly simplistic and trivialized the role of the jury.

The court disagreed for several reasons. First, it explained that the plain language of Rule 20.01 permits either party in any civil action to move for summary judgment following the delivery of a statement of defence. The court pointed out that the “rule does not carve out from its reach actions in which a party has served a jury notice.” Second, the court reminded that the right to a jury trial is limited and that a court may interfere with a party’s election of a jury trial for compelling reasons. Rule 20 provides such a compelling reason and was redesigned to transform the rule “from means to weed out unmeritorious claims to a significant alternative mode of adjudication.” I note that, at the conceptual level, Rule 20 concerns itself with a simple question: does a specific action require a trial for its fair and just determination on the merits? Thirdly, the court aptly noted that Rule 20 is not concerned with who should act as the trier of fact. Instead, its focus is on whether a trial is required. As such, the court concluded that the test and methodology that the Supreme Court of Canada articulated in Hryniak apply equally to civil jury actions and to actions that contemplate a trial by judge alone. As a consequence, the court did not accept Moffitt’s submission that summary judgment motion in a civil jury action should apply the special test spelled out in Roy.

In its reasoning, the court clarified that by adopting a special summary judgment test for civil jury actions would create two categories of summary judgment motions (i.e., those brought in civil jury actions and those brought all others), a distinction that finds no support in the language of Rule 20, which states that a court “shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial….” The court further added the proposed special test essentially would eliminate the role of the broad fact-finding powers introduced into Rule 20 and throw out the proportionality factor that plays such a critical role in Hryniak’s Rule 20 test. Finally, the court explained that the creation of two categories of summary judgment motions would undermine the needed culture shift directed in Hryniak, which goal is to strike a proper balance between procedure and access in the civil justice system by recognizing that alternative modes of adjudication are not less legitimate than the conventional trial.

In Hryniak, the top court made it clear that “a trial is not the default procedure” for adjudicating a civil dispute. Writing for a unanimous court, Justice Andromache Karakatsanis stressed: “the full trial has become largely illusory because, except where government funding is available, ordinary Canadians cannot afford to access the adjudication of civil disputes.”

Consistent with Hryniak’s objectives, the Rules offer a “menu” of procedural tools from which parties may choose to obtain the final adjudication of their proceeding. For example: Rule 21.01(1)(a) permits a party to move, before trial, for the determination of a question of law; Rule 21.01(1)(b) permits a party to move to strike out the pleading of the opposite party on the basis that it discloses no reasonable cause of action or defence; Rule 14.05(3) permit a party to avoid the trial process by asserting his or her claim by way of an application, rather than an action; Rule 76 compels a party to utilize the simplified procedure process if the asserted claims are for $200,000 or less; and, inter alia, Rule 20.04(2)(b) permits the parties to agree to have their dispute determined by the summary judgment process.

In Moffitt, the court offered the following practical observation: “[w]hile the results of a Hryniak proportionality analysis will turn on the specific fact 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.” The court reminded motion judges that: “[p]roportionality process is not achieved if the result of a summary judgment motion is to replace a sprawling, lengthy and very expensive jury trial with sprawling, lengthy and very expensive summary judgment motion.”

Moffitt re-affirmed that neither party has an unfettered right to determine the mode of adjudication of their proceeding. It added that “neither party should have a right to carve-out its civil action from the application of Hryniak principles.” It emphasized that when it comes to the determination of whether a civil jury action should be adjudicated by means of a summary judgment motion, the focus must be on whether the summary judgment process enables a fair determination on the merits in light of the record presented and not on who should be the trier of fact in the event it is determined there exists a genuine issue for trial.

Written in an elaborate manner, Justice David M. Brown’s reasoning in Moffitt, which weaves together various legal principles into a structured narrative, is a must-read for every prudent litigation counsel.