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Civil Litigation Cases - Applications - Partial. Mellace v. Mellace
In Mellace v. Mellace (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against "a partial determination" of mutual applications in a family corporation context.
Here the court considers the appellant's argument that the lower court erred in hearing only part this application, comparing this with similar 'partial' summary judgement motions:[24] It is open to the court to hear and decide part of an application where that part is ready for determination while other aspects proceed to a further and other hearing: 407 ETR Concession Co. Ltd. v. Ontario (Minister of Transportation), 2004 CanLII 10753 (Ont. S.C.), at para. 33, rev’d on other grounds, (2005), 2005 CanLII 21673 (ON CA), 199 O.A.C. 221 (C.A.); see e.g., P.S. v. Ontario, 2014 ONCA 900, 123 O.R. (3d) 651, at para. 23. As with partial summary judgment under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, however, hearing an application on a partial basis will be appropriate only where the issues can be readily bifurcated and dealt with expeditiously in a cost-effective manner, while minimizing the risk of inconsistent findings: see Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34; Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, at para. 14; Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, at para. 29, leave to appeal refused, [2020] S.C.C.A. No. 194; Chitaroni Estate v. Coleman (Township), 2025 ONCA 424, 70 R.P.R. (6th) 205, at para. 16.
[25] As with the decision to hear a partial motion for summary judgment, absent an extricable error of law, the decision to hear part of an application is discretionary and entitled to deference: see Chitaroni Estate, at para. 18.
[26] I would not interfere with the application judge’s discretionary decision to bifurcate the application. There were numerous court appearances before the hearing resulting in the order under appeal. It is unclear whether, during those court appearances, the wife opposed proceeding on a partial basis. While her factum below resisted bifurcation, in oral argument, counsel at no point argued that the matter should not be heard on a partial basis. The matter had been adjourned on several occasions to allow for cross-examinations and the completion of undertakings. At the hearing, the application judge had before her an extensive record. During oral submissions on appeal, the wife’s counsel confirmed that only the business valuation remained to be prepared, the outcome of which did not bear on the issues before the court. On this record, I am not prepared to interfere with the discretionary decision of the application judge to proceed to hear the applications on a partial basis.
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