In Moffitt v. TD Canada Trust, 2023 ONCA 349, the Court of Appeal commented on Ontario courts’ lack of transparency with respect to decision making. The issue arose in an appeal from a successful motion for summary judgment. Writing for the court, Brown J. reiterated the Supreme Court of Canada’s comments in Hryniak v. Mauldin, 2014 SCC 7, that most Canadians cannot afford to litigate, that a conventional trial is not a realistic alternative for most litigants, and that a culture shift is therefore required to create an environment that promotes timely and affordable access to justice — in part, by moving the emphasis away from the conventional trial and by recognizing that alternative models of adjudication are no less legitimate.

Justice Brown highlighted the available “menu” of final adjudication on the merits procedural tools (including Rule 21 motions, applications, simplified procedure, and summary judgment). In an important footnote, Brown J. then analyzed a recent sample of cases reported on CanLII and concluded that parties had resorted to non-trial procedures approximately four times more frequently than trials. However, he stated that the absence of consistent operational data reported by courts made it difficult to address litigation policy and process empirically, particularly in light of the requirement that a summary judgment motion judge consider whether the summary judgment process is “a proportionate, more expeditious and less expensive means to achieve a just result”.

Justice Brown’s footnote is reproduced here:

It is an unfortunate state of affairs that neither the Superior Court of Justice in Ontario nor the Court of Appeal for Ontario publishes information about how they manage and dispose of their caseload. 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.

One can develop a rough profile of the use of various final-adjudication-on-the-merits procedural devices by reviewing decisions from the Superior Court of Justice posted on CanLII. I developed such a profile for decisions posted in March 2023, using the data recorded on CanLII as of April 14, 2023. I picked the month of March 2023 at random.

Of the 261 cases reported on CanLII from the Ontario Superior Court of Justice 53 involved civil (non-family) proceedings in which a party sought a final adjudication on the merits. The most frequently used procedural device was the application (24 decisions), followed by summary judgment (10 decisions), non-jury trials, including a r. 76 simplified procedure trial (10 decisions), r. 21.01 motions (4), default judgment motions (3), a r. 21.02 motion (1), and a r. 34.15 motion (1), as summarized on the following table:

These numbers suggest, at least for the month randomly picked, that parties resort to non-trial procedural devices to obtain a final adjudication approximately four times more frequently than to trials […].The absence of comprehensive institutionally-reported data therefore makes it difficult to deal empirically with questions of litigation policy and process, such as those that arise in this case.[1]

Later in the decision, Brown J. stated that the “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”. [2]

In addition to commenting on courts’ lack of institutionally reported data, Brown J. also clarified the principles applicable to a motion for summary judgment, including whether and in what circumstances one may be brought in a civil action in which a party has served a jury notice. In doing so, he rejected an argument that a special test should apply in a civil action where a jury notice has been delivered, and affirmed the motion judge’s view that such an approach would be inconsistent with the text of Rule 20, the culture shift towards cost-effective alternatives to trial, and the direction of Hryniak that summary judgment should be granted when it is just and proportionate to do so. The existence of a jury notice is one factor to consider, but not the primary one. This was a flexible application of the summary judgment procedure and a nod towards the importance of a “culture shift” in the Ontario civil system.