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Civil Litigation - Summary Judgment - Partial (2). Passmore v. Hamilton (City)
In Passmore v. Hamilton (City) (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a trial summary judgment, later held to have been a partial summary judgment and as such inappropriate in the case circumstances:[7] While the motion judge’s reasons refer to the fact that this was a Rule 20 motion for summary judgment, there is no reference to the fact that, in moving for the removal of one defendant, the motion was only for partial summary judgment. Nor does he refer to the particular considerations and established case law applicable to such motions. These considerations reflect the well-established principle that partial summary judgment is only appropriate in rare circumstances.
[8] In Malik v Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215, at para. 62, the court set out three considerations that support granting partial summary judgment:1. The determination of the case in several parts will prove cheaper for the parties;
2. Partial summary judgment will get the parties’ case in and out of the court system more quickly; and
3. Partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case. [9] On appeal, counsel for the respondent made two principal submissions. First, she submitted that the motion judge did refer to the fact that the motion was made under Rule 20 and that the motion judge properly determined that there was no “genuine issue requiring a trial” as required by the test in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. This argument fails because there is no discussion of the appropriateness of partial summary judgment. None of the considerations outlined in Malik are addressed.
[10] Second, she submitted that the motion judge did conclude that there would be no prejudice to the plaintiff if the motion were granted, and that his decision was appropriate as it would focus the issues for trial and be less expensive. There is no merit to this submission because of the absence of any consideration of the appropriateness of partial summary judgment. Furthermore, counsel cannot fill the void with their own analysis of the Malik considerations on appeal.
[11] This is not one of those rare cases in which an order for partial summary judgment was appropriate. As the motion judge himself acknowledged, granting the motion would not have resulted in any efficiencies of time or expense because the City did not raise the issue until the pre-trial conference. At the time of the pre-trial conference before Sheard J. in July 2023, the matter was set down for trial and scheduled to proceed in November 2023. The City’s motion was scheduled only after (and as a result of) the pre-trial, and was heard only in February 2024, approximately three months after the trial was supposed to take place.
[12] The motion required full briefing, cross-examination, and argument that could equally have been made at trial. Given the appellant’s allegations of joint liability against HSR and the City, the trial will require adjudication of the same issues on the same evidence. Partial summary judgment was not appropriate in these circumstances. . Le v. Norris
In Le v. Norris (Ont CA, 2024) the Ontario Court of Appeal considered an appeal from a partial summary judgment family matters, here involving spousal support, and "claims for damages related to the purchase of a property".
Here the court comments on 'partial summary judgment', here in a family law context:(1) The award of partial summary judgment
[22] Partial summary judgment “should be granted only in the clearest of cases and only if doing so does not give rise to any of the associated risks of delay, expense, inefficiency, and inconsistent findings”: Truscott v. Co-Operators General Insurance Company, 2023 ONCA 267, 428 D.L.R. (4th) 113, at para. 54. Further, partial summary judgment should not be granted where there is a real risk of inconsistent or duplicative facts in the context of the litigation as a whole: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561, at para. 38.
[23] That does not mean, however, that partial summary judgment should never be granted. It is appropriate to grant partial summary judgment where three conditions are established:(i) The determination of the case in several parts will prove cheaper for the parties;
(ii) Partial summary judgment will get the parties’ case in and out of the court system more quickly; and
(iii) Partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.
(Malik v. Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215, at para. 62) [24] Appellate courts must be cautious in reviewing orders for partial summary judgment. In Malik, for example, it was likely that the claims involved in the partial summary judgment motion would not result in inconsistent findings, but the motion would increase both costs and delay. However, at para. 67, the court noted that setting aside partial summary judgment for adding cost and delay would only add further cost and delay, and dismissed the appeal. Additionally, in VP Auto Sales & Service Ltd. v. Ahmed Inc., 2024 ONCA 507, at para. 26, this court has previously found no error in granting partial summary judgment where the adjudicator instructed himself properly on the principles of trial efficiency and proportionality.
[25] Motion judges in family law matters must consider the factors that weigh for and against granting partial summary judgment. As a matter of best practices, they should explain why they find it appropriate.
[26] I would also note that when unrepresented parties are involved, as in this case, concerns about the efficiency of the process may take on particular importance. In such matters, however, it may be particularly important to narrow the issues for trial, particularly where one or more parties are self-represented.
[27] I am satisfied that an order of partial summary judgment was appropriate in this case for two principal reasons. First, the costs of litigating this matter have been high and disproportionate. For example, Ms. Le filed 882 pages of exhibits to her affidavit. As the motion judge noted, “[c]ourts do not have the resources to weed through such excessive material in order to glean what is and what is not necessary and relevant.” Second, the issue of spousal support involves the application of statutory language to uncontested facts. There is no risk of inconsistent findings or outcomes because, as I will explain, the legal definitions of spouse and parent are distinct and serve different purposes. The resolution of the damage claims arising from the property dispute on summary judgment is problematic for other reasons. They are also, however, independent of the child and spousal support issues.
....
[39] There is no genuine issue requiring a trial when the judge can make the necessary findings of fact, the judge can apply the law to the facts, and the process is a proportionate, more expeditious, and less expensive means to achieve a just result: Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49. .... . Boltyansky v. Joseph-Walker
In Boltyansky v. Joseph-Walker (Ont CA, 2024) the Divisional Court dismissed an argument related to 'partial summary judgment':[17] The appellants also argue that the motion judge erred by, in effect, granting “partial summary judgment”. In order to address this ground of appeal, we need not decide whether this characterization is correct. Even if the order under appeal is, in form or substance, a partial summary judgment, no error occurred. Partial summary judgment is not impermissible per se. If partial summary judgment does not present a risk of duplicative proceedings or inconsistent findings of fact, and resolving the claim could significantly advance access to justice and be the most proportionate, timely and cost-effective approach, it may be in the interests of justice to grant partial summary judgment: Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2021 ONCA 589, 462 D.L.R. (4th) 731, at para. 32. The motion judge addressed each of these considerations and found they were met. She likened the facts of this case to Heliotrope itself, and she tested the propriety of granting summary judgment against the criteria identified in Malik, at para. 62. Her decision is entitled to deference, and we see no extricable errors in her decision: Heliotrope, at para. 30. . 1000425140 Ontario Inc. v. 1000176653 Ontario Inc.
In 1000425140 Ontario Inc. v. 1000176653 Ontario Inc. (Ont CA, 2024) the Ontario Court of Appeal considered when partial summary judgment was appropriate:[34] The issue of the appropriateness of bifurcating proceedings was addressed by Gillese J.A. in Truscott v. Co-Operators General Insurance Company, 2023 ONCA 267, 482 D.L.R. (4th) 113. Gillese J.A. allowed an appeal of a partial summary judgment motion. She accepted the submission that partial summary judgment was not appropriate and ordered the whole claim to proceed to trial. She held at para. 54 that:The motion judge correctly articulated the following legal principles governing partial summary judgment motions, at paras. 42-43 of his reasons. Partial summary judgment is a rare procedure, reserved for an issue or issues that may be readily bifurcated from those in the main action, and that may be dealt with expeditiously and in a cost-effective manner: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34. Partial summary judgment should be granted only in the clearest of cases and only if doing so does not give rise to any of the associated risks of delay, expense, inefficiency, and inconsistent findings. [35] As noted by this court in Truscott and in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561 at para. 38, before granting partial summary judgment, an analysis should be conducted to determine whether summary judgment is appropriate in the context of the litigation as a whole, and to address possible concerns.
[36] While the motion judge did not directly address the issue of appropriateness, the only issue raised by the appellants is the possible inconsistency in the findings of fact.
[37] For the reasons that follow, we conclude that partial summary judgment was appropriate in these circumstances as there is no danger of inconsistent findings of fact. .... . VP Auto Sales & Service Ltd. v. Ahmed2 Inc.
In VP Auto Sales & Service Ltd. v. Ahmed2 Inc. (Ont CA, 2024) the Ontario Court of Appeal considers basics of summary judgment, here especially partial summary judgment:[25] One of the purposes of the summary judgment rule is to eliminate the need for a trial or shorten it or the action. If partial summary judgment can be granted that will meet the purpose of shortening the litigation, this will satisfy the requirements of efficiency and cost-effectiveness: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 60. Furthermore, the Rules of Civil Procedure explicitly contemplate partial summary judgment in circumstances such as this where the only genuine issue for trial is the amount to which the moving party is entitled: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 20.04(3).
[26] The motion judge instructed himself properly on the principles of trial efficiency and proportionality arising from Hryniak. . 1819472 Ontario Corp. v. John Barrett General Contractors Limited
In 1819472 Ontario Corp. v. John Barrett General Contractors Limited (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal which challenged the dismissal of the defendant's summary judgment motion on limitation grounds.
Here the court emphasizes the detail required for summary judgment orders, to clarity fact-findings made at an earlier partial hearing:[22] Notwithstanding that the parties take no issue with the court’s jurisdiction to hear this appeal, the form of the order under appeal here does not make the legal basis of the order obvious, which necessitates some effort to determine whether this court in fact has jurisdiction. Had the motion judge followed this court’s direction in Skunk v. Ketash, 2016 ONCA 841, 135 O.R. (3d) 180, and other cases, that an order dismissing a motion for summary judgment should clearly state that the motion judge is exercising a power to finally decide some question of fact or law, this exercise would not have been necessary. Jurisprudence from this court supports the observation that it will often be the case that a dismissal of a motion for summary judgment that has been brought solely on the basis that the claim has been brought out of time will be a final order: Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.); Kowal v. Shviak, 2012 ONCA 512, 296 O.A.C. 352. The appellants rely on this authority and the respondent agrees.
[23] However, it is not invariably the case that a dismissal of a motion for summary judgment that was brought solely on the basis of a limitation period will be a final order. In Vanden Bussche Irrigation & Equipment v. Kejay, 2016 ONCA 613, Weiler J.A., sitting in chambers, concluded that in dismissing the summary judgment motion, the motion judge below would not have sent the matter to trial unless the motion judge had determined that the limitation period raised a genuine issue for trial: at para. 11. In that case – a simple debt action – the limitations defence was the only live issue and had the summary judgment motion judge intended to decide it, it would have been a straightforward matter to have simply granted summary judgment to the plaintiff. Not having done so led to the conclusion that there needed to be a trial to determine the viability of the limitations defence. Although the current case is unlike Vanden Bussche in that there are substantive triable issues that necessitate a trial in any event, it is nevertheless necessary to explain the basis of this court’s jurisdiction over this matter from first principles.
[24] It is uncontroversial that where a defendant brings a successful motion for summary judgment on the basis that the action is statute-barred due to having been commenced out of time, the resulting order is final, and an appeal lies to this court. Matters are more complicated where the motion is instead dismissed.
[25] The complication results from an ambiguity that can be present in the dismissal of a summary judgment motion. In dismissing the motion, a motion judge may have either intended to: (1) decide a substantive issue – in this case, whether the limitations defence is available – or; (2) decide that there is a genuine issue requiring trial, without intending that any findings made be binding on any subsequent proceeding: Skunk, at para. 34; Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375, 115 O.R. (3d) 401, at para. 7. In order to avoid the uncertainty generated by this potential ambiguity, there is a presumption that, unless the motion judge specifically references the powers under r. 20.05(1) or r. 20.04(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to make binding determinations of fact or law, and specifies what material facts or questions of law are now not in dispute, the motion judge did not intend to make binding determinations of fact or law, and those determinations will remain to be made by the trial judge: Ashak, at para. 11; Skunk, at para. 36.
[26] As a matter of best practice, a motion judge who intends to make a final determination on a question of fact or law ought to state the rule under which the determination has been made in the order issued: Skunk, at para. 36. And although a failure to make such a statement in the order suggests that no such determination or finding was made, this failure is not determinative: in some cases, to determine what has been decided, it is necessary to look at the reasons: Vanden Bussche, at para. 10; Walchuk Estate v. Houghton, 2015 ONCA 862, at para. 14, citing Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.); Abbott v. Collins (2002), 2002 CanLII 41457 (ON CA), 62 O.R. (3d) 99 (C.A.); and Ashak, at para. 17. This is one of those cases.
[27] In the case at hand, the order under appeal simply states that the motion for summary judgment is dismissed, without referencing any of the subrules or stating any factual or legal issues decided. Similarly, the notice of motion simply references r. 20 generally. Reading these alone, the general rule would suggest that the intention of the order was simply to decide that there is a triable issue and leave the determination of the limitations defence to be decided subsequently by the trial judge. The order would therefore not be a final order, and the appeal would lie to the Divisional Court with leave.
[28] The parties understood, however, that the motion judge had intended to decide the legal question of whether the action had been commenced within the time period stipulated by the Limitations Act, and that this was intended to be a final order. I agree that the reasons for decision make this conclusion abundantly clear, although the formal order does not.
[29] There was only one issue argued on the summary judgment motion – whether the action had been commenced within two years of the plaintiff gaining knowledge of the facts giving rise to the cause of action. None of the material facts were in dispute. Losing the motion would necessarily mean that the appellants would thereafter be disentitled to raise the defence at trial, unless the reason that the motion was dismissed was because the motion judge determined it was an issue that required a trial to decide.
[30] But nothing in the reasons suggests that the motion judge had any concerns about deciding the sole matter in issue on the record before him. The reasons do not, for example, express any concerns about credibility or the need for viva voce evidence. The limited scope of the motion explains why the motion judge did not grant summary judgment in favour of the plaintiff: the liability of the appellants was simply not before him for determination. The only issue was the limitations defence.
[31] Although it would have been advisable for the motion judge to have referenced r. 20.04(4) in the order, there was no confusion – and could be no confusion – about the nature of the order that was made. The order was a final order that disposed of the issue of the limitations defence. The appeal is properly brought in this court. . Stanley v. Lucchese
In Stanley v. Lucchese (Ont CA, 2023) the Court of Appeal briefly considered factors invlved in allowing a motion for partial summary judgment:[3] The appellant argues that the motion judge erred by granting partial summary judgment on the guarantee by not considering the three inquiries this court proposed in Malik v. Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215.
[4] We do not agree that the motion judge erred. She considered all relevant factors canvassed in Malik and was under no obligation to specifically refer to the case by name.
[5] It was apparent to the motion judge on the record before her that partial summary judgment would result: (1) in a costs savings, at least for the respondent; (2) resolve a significant discrete issue; and (3) do so without risk of inconsistent findings. . Thompson v. Herschel Rescue and Training Systems
In Thompson v. Herschel Rescue and Training Systems (Ont CA, 2023) the Court of Appeal considers (and allows) an appeal against a partial summary judgment which dismissed a personal injury action against a municipality, one of several defendants. As is common with such cases, the appeal issue revolved around the possibility of inconsistent findings in the bifurcated proceedings:Analysis
[10] The motion judge quoted para. 34 of Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, in which this court stated that partial summary judgment is a “rare procedure”, reserved for issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner. However, he did not advert to the warning in Cook v. Joyce, 2017 ONCA 49, a summary judgment case, where at para. 92, this court stated: the more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record. See also Truscott v. Co-operators General Insurance Company, 2023 ONCA 267, 482 D.L.R. (4th) 113, at paras. 58-59.
[11] Credibility disputes are key to determining the issues in this case and the motion judge erred in principle by failing to recognize that. The conflicting evidence about the Town’s involvement in the training course could not be resolved without credibility determinations being made on matters that include the following: whether the Town provided facilities at no cost to Mr. Harrison to run the course; which parts of the course, if any, were held in the fire hall part of the Town facility; was Town fire hall equipment used in the training; were one or more Town fire officials present at some parts of the training; and, whether the Town was aware that a participant in an earlier similar training course offered by Mr. Harrison had died when it agreed to allow him to offer the program in Town facilities.
[12] These issues overlap with those left for trial relating to Herschel and Mr. Harrison. Because the issues are inextricably intertwined, deciding those relating to the Town’s involvement on the Motion leads to the possibility of inconsistent findings and substantive injustice. The factual findings must be left to the trial judge who, with the benefit of hearing all the trial testimony and any further productions, will have a fuller appreciation of what transpired and the relationships among the parties. That appreciation is crucial to fairly decide the allegations against all the defendants. . Froom v. Lafontaine
In Froom v. Lafontaine (Ont CA, 2023) the Court of Appeal cites the lower court stating clearly the procedural concern with 'partial summary judgment':[80] The standard of review of a decision to grant summary judgment is deferential, unless there are extricable errors.[38] Summary judgment might not be in the interest of justice where there is a “risk of duplicative proceedings or inconsistent findings of fact”.[39] The motion judge was alive to that issue in this case, and stated:Partial summary judgment should only be granted in the clearest of cases where the issue on which summary judgment is sought is clearly severable from the balance of the case: Butera v. Chown, Cairns LLP, 2017 ONCA 783, para. 34. The factors to be considered include: (1) whether the matter to be resolved by summary judgment can be bifurcated from the remaining litigation; (2) dealt with in an expeditious and cost-effective manner; and (3) whether the possibility of inconsistent findings by different courts can be avoided: Feltz Design Build Ltd. v. Larson, 2022 ONCA 150, para. 18. . Truscott v. Co-Operators General Insurance Company
In Truscott v. Co-Operators General Insurance Company (Ont CA, 2023) the Court of Appeal considered the problematic issue of partial summary judgment:[53] I accept the appellants’ submission that partial summary judgment was not appropriate in this case.
[54] The motion judge correctly articulated the following legal principles governing partial summary judgment motions, at paras. 42-43 of his reasons. Partial summary judgment is a rare procedure, reserved for an issue or issues that may be readily bifurcated from those in the main action, and that may be dealt with expeditiously and in a cost-effective manner: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34. Partial summary judgment should be granted only in the clearest of cases and only if doing so does not give rise to any of the associated risks of delay, expense, inefficiency, and inconsistent findings.
[55] However, in my view, the motion judge made an extricable error in principle in granting partial summary judgment: he failed to consider whether partial summary judgment was appropriate in the context of the litigation as a whole. The issues decided by the motion judge on the Motion cannot be readily bifurcated from those left for determination at trial. Because the issues are inextricably intertwined, deciding them on the Motion leads to the possibility of inconsistent findings and substantive injustice.
[56] The motion judge concluded that, as a result of having gone through the appraisal process, the appellants were barred from having other of their building and valuable papers loss claims considered. As I explain below in my analysis of Issue #2, he erred in law in that conclusion. The motion judge also concluded that the appellants had been paid all they were entitled to under the Policy for building loss and valuable papers loss. The difficulty with these conclusions is they rest on factual findings that are inextricably intertwined with the matters in the Claim that will proceed to trial, including claims relating to business interruption losses, bad faith, and punitive and aggravated damages.
[57] The appellants allege that Co-operators and Mr. Carroll manipulated the appraisal process and delayed payment of their loss claims in ways that amount to bad faith. To decide the appellants’ bad faith allegations, the trial judge will need to consider and make credibility findings on, among other things: the events surrounding the appellants’ claims for building and valuable papers losses; what happened in the lead up to the appraisals; the parties’ understandings of the intended scope of the appraisals that took place; the basis on which the appraisals were conducted; the appraisal procedures to be followed; what occurred during the appraisal processes; and, the timing and amounts of payments that were made. However, those determinations are inextricably intertwined with the motion judge’s factual findings that led him to conclude that the Awards finally settled the appellants’ claims and their entitlements under the Policy. Accordingly, partial summary judgment was not available.
[58] Further, in my view the motion judge erred when he stated, at para. 81 of his reasons, that credibility was not a critical issue in the matters before him. On the contrary, his factual findings were dependent on making credibility determinations. A single example will demonstrate this. At para. 23 of his reasons, the motion judge states the umpire “refused to consider the October 31, 2017 [valuable papers] proof of loss”. As I explain above, while that is Co‑operators/Mr. Carroll’s position, the appellants’ version as to why the umpire did not consider that valuable papers loss claim in the second appraisal is fundamentally different. The scope of the umpire’s jurisdiction in the second appraisal process is significant when deciding Award #2’s effect on the appellants’ right to have its other two valuable papers loss claims considered by Co-operators – a matter that could not be decided in the absence of credibility findings.
[59] In short, there is significant overlap on the facts relating to the issues for trial and those underlying the motion judge’s determinations. The factual findings must be left to the trial judge who, with the benefit of hearing all the trial testimony and further productions, will have a fuller appreciation of what transpired and the relationships among the parties, an appreciation that is crucial to fairly decide the allegations in the Claim.
[60] Moreover, the summary judgment process did not serve the objectives of proportionality, efficiency, and cost effectiveness. It was not cheaper, faster, or more efficient. Co-operators and Mr. Carroll brought the partial summary judgment motion on September 26, 2019. The record is voluminous. Cross-examinations of the affiants took place, as did cross-examination of witnesses under r. 39.02. The Motion was eventually argued on November 23, 2021, over two years after it was brought. There has been extensive delay and expense caused by the use of the partial summary judgment procedure.
[61] In my view, it is readily apparent that this was not one of those “clearest” of cases in which partial summary judgment was appropriate. . Learmont Roofing Ltd. v. Learmont Construction Ltd.
In Learmont Roofing Ltd. v. Learmont Construction Ltd. (Ont CA, 2022) the Court of Appeal characterized partial summary judgment:[19] Partial summary judgment is a “rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner”: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 418 D.L.R. (4th) 657, at para. 34. The more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a partial summary judgment basis: Cook v. Joyce, 2017 ONCA 49, at para. 92.
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