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Civil Litigation Cases - Summary Judgment - Partial (3). Kotsopoulos v. Toronto (City)
In Kotsopoulos v. Toronto (City) (Ont CA, 2026) the Ontario Court of Appeal allowed a plaintiff's appeal, this brought against the granting of the defendant's partial summary judgment motion in a municipal liability case:[7] We note that the motion judge delivered his reasons before this court’s decision in Bello. However, we focus on the motion judge’s analysis of whether it was appropriate to grant partial summary judgment. We conclude that the motion judge erred in granting partial summary judgment.
[8] The motion judge gave the following reasons on the issue of whether partial summary judgment was appropriate:Given the direction by the Court of Appeal limiting partial summary judgment, I would not have permitted the motion to be scheduled had it appeared before me in Civil Practice Court. I would have applied the three part test under Malik v. Attia, 2020 ONCA 787 (at paragraph 62) to conclude the termination of this issue would possibly “prove cheaper” only to the City of Toronto. Similar, the only party that may get its case “in and out of the court system more quickly” is the City of Toronto. In order to ensure no risk of “inconsistent findings by the multiple judges who will touch this divided case” I would have urged the City to serve a formal Rule 49 Offer to Settle and make its submissions at trial.
However, having secured the date and having incurred the time and expense of preparation, I reluctantly heard this motion. [9] We agree with the motion judge’s conclusion, applying the factors in Malik v. Atia, 2020 ONCA 787, at para. 62, that this case was not appropriate for partial summary judgment, for the reasons he outlined. However, having reached that conclusion, the motion judge ought to have dismissed the motion for partial summary judgment. In the face of finding that the Malik factors weighed against granting partial summary judgment, the motion judge erred in deciding the motion because it had been scheduled.
[10] We acknowledge that the judge presiding in Civil Practice Court when the motion was scheduled adverted to the fact that the motion was for partial summary judgment, “in the sense that the action would continue against the other defendants”. However, the Civil Practice Court judge did not do a full Malik analysis. Nor could he have. The evidentiary record for the summary judgment motion had not been filed at the time of the Civil Practice Court appearance when the motion was scheduled.
[11] Judges presiding in Civil Practice Court[1] play an important screening role in identifying cases that do not appear appropriate for partial summary judgment. This role requires them to take a hard look at motions seeking partial summary judgment at the time scheduling is proposed. But where a motion seeking partial summary judgment is scheduled, it remains the obligation of the motion judge to assess whether partial summary judgment is appropriate, considering the factors discussed in cases such as Malik, and Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 29-34. Because the motion judge, unlike the Civil Practice Court judge, will have the full record of the summary judgment motion, they are in a much preferable position to assess whether partial summary judgment is appropriate.
[12] We would add the following. Although it is ultimately the motion judge’s responsibility to decide whether partial summary judgment is appropriate in each case, all parties have a responsibility to raise concerns in relation to partial summary judgment at the earliest opportunity. Where a party opposing a summary judgment motion on the basis that it is inappropriate for partial summary judgment fails to raise the issue at the time the motion is scheduled, it is open to a motion judge to consider that factor in assessing costs.
[13] We allow the appeal on the basis that the motion judge erred in not giving effect to his finding that the case was not appropriate for partial summary judgment. .... . Paragon Protection Ltd. v. Tamstu-Harjon Holdings of Canada
In Paragon Protection Ltd. v. Tamstu-Harjon Holdings of Canada (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a plaintiff's appeal, this brought against a dismissal of an oppression claim.
Here the court considers a 'partial' summary judgment issue:[30] Lastly, the appellants submit that the issue of their standing to bring an oppression claim against Mr. Rosenthal personally should not be decided on this motion for partial summary judgment. The appellants repeatedly emphasize that their claims are based on a complex, longer-than-forty year history between these companies, beginning in 1978. Yet they submit that the motion judge erred in taking into account Mr. Rosenthal’s limited role, becoming a director and officer in 2020 on forward. The appellants further rely on the risk of conflicting findings and on the second ground of appeal, above, asserting that there is not a full evidentiary record at this stage. We have already found that ground is not well-founded.
[31] The motion judge did not err in law or make a palpable and overriding error of fact. The motion judge followed the established Court of Appeal jurisprudence about partial summary judgment as set out in Malik v. Attia, 2020 ONCA 787. The motion judge noted that the summary judgment motion had been screened through a Commercial List case management process, as recommended at para. 58 of Malik, under which Justice Kimmel permitted the motion to proceed on the issue set out above. The motion judge considered delay, expense, inefficiency and the risk of inconsistent findings. The motion judge noted that Mr. Rosenthal would continue to be involved as one of the estate trustees. The motion judge found that the litigation would be narrowed and less expensive if the oppression claim against Mr. Rosenthal personally was dismissed on the summary judgment motion. With respect to inconsistent findings, the summary judgment motion was limited to the standing issue of whether the appellants could claim oppression against Mr. Rosenthal personally. Further, the motion judge did not err by taking into account Mr. Rosenthal’s short involvement with Tamstu in the context of the very long time period at issue. . 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. . Canada One Family Network v. Cach Platform Inc.
In Canada One Family Network v. Cach Platform Inc. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a commercial tenant's appeal, this brought against "an order terminating Canada One’s lease with Cach, granting Cach possession of the Property, ordering that Canada One pay Cach any arrears of rent and rent up to the date that Cach gained possession of the property and declaring that Ms. Zhu had no signing authority or control over Cach’s bank account at the Royal Bank and declaring that Wah Hui Lam, the principal of Cach had sole signing authority and control regarding that bank account".
Here the court considered 'partial summary judgment':[24] The Appellants submit that the motion judge erred in law in granting partial summary judgment. According to the Court of Appeal partial summary judgment is a “rare procedure that should be sparingly invoked”. The reason for this is two-fold. First, instead of fostering timely and affordable justice, partial summary judgment motions can increase both delay and costs. Second, partial summary judgments can increase the danger of inconsistent findings being made at trial when there is a more complete record: see Way v. Schrembri, 2020 ONCA 691, 8 B.L.R. (6th) 158, at para. 16.
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