“Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 CanLII 814 (ON CA), 18 O.R (3d) 481 (Ont. C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14 (CanLII), [2008] 1 S.C.R. 372 at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.).
The jurisdictional test for granting a summary judgment is that there is no genuine issue requiring a trial, and at the heart of this test is a judicial gut check. Although she did not put it in quite that way, in Hryniak v. Mauldin at paras. 49 and 50, Justice Karakatsanis noted that in the context of an adversarial system, if a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial. She expressed this sentiment, as follows:
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- 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.
- These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
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Part of this confidence or gut check that a summary judgment is fair and just is achieved if the judge is satisfied that he or she can justly and fairly decide the matter without the advantages of participating in the dynamic of a trial, where witnesses testify in their own words and can be observed through the rigors of both examination-in-chief and cross-examination, and where the judge has an extensive exposure to the evidence and sees the case unfold without having to piece it together in chambers working from affidavits, transcripts, and factums.
Although in Hryniak v. Mauldin the Supreme Court of Canada commanded a very robust summary judgment procedure, it did not foreclose lower courts from simply dismissing the summary judgment motion and ordering that the action be tried in the normal course: Gubert v. 1536320 Ontario Limited, 2015 ONSC 3294. Where there are genuine issues for trial and the court concludes that employing the enhanced forensic tools of the summary judgment procedure would not lead to a fair and just determination of the merits, the court should not decide the matter summarily: Mitusev v. General Motors Corp., 2014 ONSC 2342 at para. 79; Gon (Litigation Guardian of) v. Bianco, 2014 ONSC 65 at paras. 41-47; Yusuf v. Cooley, 2014 ONSC 6501; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at para. 44.”