A civil action can be dismissed before trial when a party – either a plaintiff or a defendant – brings a motion for summary judgment, seeking to persuade a judge that there is “no genuine issue requiring a trial”.

 If a judge finds that there is a genuine issue requiring a trial, he or she can nevertheless use certain discretionary fact-finding powers to determine the issue in question. These powers – sometimes referred to as “the toolkit” – are found in rule 20.04 (2.1) of the Rules of Civil Procedure, and they include the power to weigh evidence, evaluate credibility, and draw reasonable inferences “unless it is in the interest of justice for such powers to be exercised only at trial.”

In McDonald v. Doe et. al. 2015 ONSC 2607, Justice Dunphy considered the effect of a Jury Notice on a judge’s discretion to exercise his or her fact finding powers. He concluded that the existence of a jury notice – while not determinative – is a factor the court should consider before opening up the toolkit. He declined to use his fact- finding powers in the interest of justice, deciding it would be better to let the jury do that. The plaintiff is therefore entitled to a trial.