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Summary Judgment - Partial

. Heliotrope Investment Corporation v. 1324789 Ontario Inc.

In Heliotrope Investment Corporation v. 1324789 Ontario Inc. (Ont CA, 2021) the Court of Appeal commented on partial summary judgment:
[32] Summary judgment might not be in the interest of justice where there is a “risk of duplicative proceedings or inconsistent findings of fact”: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 60. See also Baywood Homes, at para. 34; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561, at paras. 36-38, leave to appeal requested but appeal discontinued, [2017] S.C.C.A. No. 58; Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 25; and Service Mold, at paras. 14, 17-18. However, in some cases, “the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost-effective approach”: Hryniak, at para. 60.
. Spiridakis v. Li

In Spiridakis v. Li (Ont CA, 2021) the Court of Appeal commented as follows on partial summary judgment:
[14] This court has cautioned that a motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be bifurcated from those in the main action and that may be dealt with expeditiously and readily in a cost effective manner: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34.
. Ontario Securities Commission v. Money Gate Mortgage Investment Corporation

In Ontario Securities Commission v. Money Gate Mortgage Investment Corporation (Ont CA, 2020) the Court of Appeal states the concerns with partial summary judgment:
[63] The principles that limit the grant of partial summary judgment are aimed at avoiding proceeding in a manner that will not be cost effective, judicious or expeditious because overlapping issues will proceed to trial: Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, at para. 14. ...
. Malik v. Attia

In Malik v. Attia (Ont CA, 2020) the Court of Appeal considered concerns with partial summary judgment motions:
[61] Yet, the risk of inconsistent findings is only one of several matters that a motion judge must consider when asked to entertain a motion for partial summary judgment. Reduced to its essence, the decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 promoted summary judgment as a procedural tool that offers the prospect, when used in the right circumstances, to provide litigants with timely and affordable access to the civil court system: at paras. 2-5. Given that simple objective, before embarking on hearing a motion for partial summary judgment a motion judge must determine whether, in the circumstances, partial summary judgment will achieve the objectives of proportionate, timely, and affordable justice or, instead, cause delay and increase expense: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 29-34; Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, at para. 14.

[62] When faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties:
(i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;

(ii) Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;

(iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.
[63] I do not know what, if any, motion case management or triage system was in place in the Central West Region at the time this motion for partial summary judgment appeared on the motion judge’s docket. But, had those three requests been made before embarking on the hearing, I strongly suspect the answer would be along the following lines: while proceeding with a motion for partial summary judgment was not likely to risk inconsistent verdicts or findings, it would certainly increase the overall costs of litigating this case and delay its end-point even further.

[64] This case involves a modest amount of money, when assessed in proportion to the high costs of litigating civil cases in Ontario courts. There is a dispute over who gets to keep the $100,000 in deposits. The amount of damages truly at stake is quite uncertain, as the Seller filed no evidence on that issue. Absent such evidence, this case has all the hallmarks of falling within the monetary limits of a simplified procedure action. Bifurcating a simplified procedure action invariably will push legal costs into the realm of the disproportionate.

[65] The issue of delay must be looked at from two perspectives. First, the action was commenced on January 30, 2017 and set down for trial by the Buyers about 1.5 years later, on September 5, 2018. According to the Buyers’ motion confirmation form, a pre-trial conference was scheduled for March 2020. If that pre-trial conference date was the first available date (which is unclear from the record), one can certainly understand the temptation for a party to prod the action along by bringing a motion for partial summary judgment.

[66] But, when looked at from another perspective, here the action sits, two years after being set down for trial. It still has not reached a final adjudication on the merits. The main money issues – who gets to keep the deposits and whether the Buyers must pay damages – still have not been adjudicated. There is every prospect that by the time those issues are adjudicated, this action will have languished in the Ontario civil court system for four to five years, an unconscionable amount of time for an action involving a modest amount of money.

[67] As a matter of process, I strongly disagree with the Seller’s decision to move for partial summary judgment and refrain from filing any evidence of damages and with the motion judge’s acquiescence in hearing the motion so framed. That said, it is not a ground for appellate intervention. To set aside the judgment solely on the basis that the process added cost and delay would, in its own turn, only add more cost and delay.

[68] I appreciate that judicial time for civil matters is stretched thin in most regions of this province. But for summary judgment to achieve its stated objective – faster and cheaper access to a final adjudication on the merits – triage processes must be put in place so that judges end up determining a case once and for all on the merits, instead of slicing determinations into a series of partial summary judgments.
. Canadian Imperial Bank of Commerce v. Deloitte & Touche

In Canadian Imperial Bank of Commerce v. Deloitte & Touche" (Ont CA, 2016) the Court of Appeal cautions against making 'partial' motions for summary judgment given the risk that inconsistent fact findings regarding elements of the various causes of action may be made on the motion, versus at a later trial on the balance of issues. The ruling makes no reference to the 'genuine issue requiring a trial' standard applicable to summary judgments [RCP R20.04(2)]:
[36] I respectfully disagree with the motion judge that there is no risk of duplicative or inconsistent findings and that partial summary judgment was advisable in this instance.

[37] The motion judge correctly states that the Lenders’ claim for reckless misrepresentation and Philip’s breach of contract claim do not involve establishing a duty of care. However, the Lenders’ claim for reckless misrepresentation and Philip’s claims arise out of the same factual matrix as the Lenders’ negligence claim. As I will explain below, the facts found by the motion judge in relation to the Lenders’ negligence claim will likely be at issue in the trial of the Lenders’ claim for reckless misrepresentation and Philip’s claims.

[38] Therefore, there is a real risk of duplicative or inconsistent findings at trial. This error taints the motion judge’s conclusion that partial summary judgment was advisable in the context of the litigation as a whole.
The court also restated the elements of the tort of fraudulent misrepresentation, particularly in it's 'reckless misrepresentation' form:
[42] Reckless misrepresentation is a kind of fraudulent misrepresentation: Redican v. Nesbitt, 1923 CanLII 10 (SCC), [1924] S.C.R. 135, at p. 154. In the law of torts, a fraudulent misrepresentation that causes loss to the recipient grounds an action in “deceit” or “civil fraud”: Bruce MacDougall, Misrepresentation (Toronto: LexisNexis Canada, 2016), at para. 5.8. Recently, the Supreme Court held that a claim for “civil fraud” requires proof of the following facts: (1) a false representation made by the defendant; (2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness); (3) the false representation caused the plaintiff to act; and (4) the plaintiff’s actions resulted in a loss”: Combined Air Mechanical Services Inc. v. Flesch, 2014 SCC 8 (CanLII), [2014] 1 S.C.R. 126, at para. 21. [Emphasis added.]

[43] The third element of civil fraud summarized in Combined Air entails considering inducement and reliance. As the Divisional Court noted in respect of the lenders’ claims in Canadian Imperial Bank of Commerce v. Deloitte & Touche (2003), 2003 CanLII 38170 (ON SCDC), 172 O.A.C. 59, at para. 24, “The claims of negligent and reckless misrepresentation both require the plaintiffs to prove at trial that there have been representations of fact by each of the defendants upon which they relied.”
. Way v. Schembri

In Way v. Schembri (Ont CA, 2020) the Court of Appeal allowed an appeal against a partial summary judgment motion:
[16] .... More importantly, the principles surrounding partial summary judgment are not to be so narrowly construed nor applied. Partial summary judgment is a rare procedure that should be sparingly invoked: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34. The reasons for that approach are enunciated by Paciocco J.A. in Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, at para. 14:
There is also the risk that partial summary judgment can frustrate the Hryniak objective of using summary judgment to achieve proportionate, timely and affordable justice. If used imprudently, partial summary judgment can cause delay, increase expense, and increase the danger of inconsistent findings at trial made on a more complete record. [Citation omitted.]
[17] Those concerns regarding partial summary judgment are fully engaged in this case because, as the appellants correctly point out, the two actions are factually intertwined. Indeed, the motion judge acknowledged the overlap in the facts of the two cases numerous times in the course of his reasons. He also relied on that overlap in reaching the costs decision that he did.

[18] As a result, there is the very real possibility that conclusions reached by the trial judge could conflict with the result reached by the motion judge. There is also the possibility that the trial judge will reach a better understanding of the relationships between the parties that would give a more informed view of the meaning and purpose behind clause 13. This was the very concern that Lauwers J.A. expressed in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, when he said, at para. 37:
In the complex situation in this case, it is therefore entirely possible that the trial judge who hears the trial of the issue on the validity of the promissory notes will develop a fuller appreciation of the relationships and the transactional context than the motion judge. That could force a trial decision on the promissory notes that would be implicitly inconsistent with the motion judge's finding that the third release is fully valid and effective, even though the parties would be bound by that finding. The process, in this context, risks inconsistent findings and substantive injustice.
[19] That, however, is not the only problem with employing summary judgment in this case. The motion judge made a number of findings about clause 13 that demonstrate that summary judgment was not, in fact, an appropriate route to take in this action. First, he found that clause 13 is a restrictive covenant, although it is not clear what the motion judge meant in making that finding. Clause 13 is, in fact, a right of first refusal. Second, the motion judge found that clause 13 was ambiguous in several respects. He found its spatial parameters were ambiguous; he found at least four phrases to be ambiguous; and he found the requirement for Schembri to “present all real estate development opportunities” to be ambiguous. Third, the motion judge found clause 13 to be “commercially absurd” and not necessary to “protect Triumph’s or Kingsley’s legitimate interests”. Fourth, the motion judge found that no “typical budget model” had been presented to the court and thus concluded that this phrase was also ambiguous. Fifth, the motion judge found that the arbitration provision in the Shareholders’ Agreement, by which any disputes were to be resolved by arbitration, was “commercially unreasonable and something that no businessperson would agree to”.
. Leitch v. Novac

In Leitch v. Novac (Ont CA, 2020) the Court of Appeal stated this succinctly on partial summary judgment:
[29] Partial summary judgment is reserved for issues that may appropriately be bifurcated without creating a material risk of inconsistent outcomes, and that may be dealt with expeditiously and cost-effectively: see Butera v. Chown, Ciarns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 27-34.
. Service Mold + Aerospace Inc. v. Khalaf

In Service Mold + Aerospace Inc. v. Khalaf (Ont CA, 2019) the Court of Appeal sets out cautions on the use of partial summary judgment:
[14] The principles that guide whether partial summary judgment is appropriate are, however, more complex than those that apply to summary judgment motions generally. In Hryniak, at para. 60, Karakatsanis J. recognized that partial summary judgment may “run the risk of duplicative proceedings or inconsistent findings of fact” at trial. There is also the risk that partial summary judgment can frustrate the Hryniak objective of using summary judgment to achieve proportionate, timely and affordable justice. If used imprudently, partial summary judgment can cause delay, increase expense, and increase the danger of inconsistent findings at trial made on a more complete record: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 29-33. These risks, which require careful consideration by motion judges, were known before Hryniak and Butera, as illustrated by this court’s decision in Corchis v. KPMG Peat Marwick Thorne, [2002] O.T.C. 475 (C.A.), at para. 3. For this reason, while partial summary judgment has its place, it “should be considered to be 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, at para. 34.
. Mason v. Perras Mongenais

In Mason v. Perras Mongenais (Ont CA, 2018) the Ontario Court of Appeal criticises the awarding of partial summary judgment, saying that it should only be rarely awarded because it often prematurely fetters the balance of the case going forward:
[22] In my view, the motion judge erred in principle in granting partial summary judgment, in the context of this litigation as a whole. In doing so, the motion judge failed to heed the advice given by this court in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 (CanLII), 120 O.R. (3d) 438, about the risks associated with granting partial summary judgment. Those risks were repeated in this court’s decision in Butera v. Chown, Cairns LLP, 2017 ONCA 783 (CanLII), 137 O.R. (3d) 561. As Pepall J.A. said in Butera, at para. 34:
A motion for partial summary judgment should be considered to be 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.
[23] The potential liability of the respondent to the appellant is not an issue that can be readily bifurcated from the rest of the appellant’s claim. The nature of the appellant’s claim is such that it is inextricably linked to the claim against the other defendants, especially Chambers. Indeed the motion judge appears, at one point, to recognize this problem when he says, at para. 99:
I recognize that nothing is certain and there are risks of both duplication and that a judge could look at the same undisputed facts that I have reviewed and possibly see them differently.
. Butera v. Chown, Cairns LLP

In Butera v. Chown, Cairns LLP (Ont CA, 2017) the Court of Appeal commented on principles applicable to orders for partial summary judgment:
(b) Partial Summary Judgment

[22] I now turn to the second ground of appeal which relates to the granting of partial summary judgment.

[23] In Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87, the Supreme Court rewrote the law on summary judgments. Justice Karakatsanis, writing for a unanimous court, commenced her analysis by stating: “Ensuring access to justice is the greatest challenge to the rule of law in Canada today.” She described accessibility as being achievable through justice that is proportionate, timely and affordable. As noted in that decision, rr. 1.04(1) and (1.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, specifically codify the proportionality principle:
1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[24] The Superior Court of Justice has since considered a multitude of summary judgment motions using the principles established in Hryniak.

[25] Hryniak does not address partial summary judgment per se except in the context of exercising the enhanced fact-finding powers contained in r. 20.04(2.1). In that regard, Karakatsanis J. observed that it may not be in the interests of justice to use the new fact-finding powers to grant summary judgment against a single defendant if the claims against other parties will proceed to trial in any event. Such partial summary judgment runs the risk of duplicative proceedings or inconsistent facts. On the other hand, Karakatsanis J. noted that the “resolution of an important claim against a key party could significantly advance access to justice and be the most proportionate, timely and cost effective approach.”

[26] The pre-Hryniak appellate jurisprudence on partial summary judgment limited its availability. At para. 3 of Corchis v. KPMG Peat Marwick Thorne, [2002] O.J. No. 1437 (C.A.), this court applied Gold Chance International Ltd. v. Daigle & Hancock, [2001] O.J. No. 1032 (S.C.J.) to state that:
[P]artial summary judgment ought only to be granted in the clearest of cases where the issue on which judgment is sought is clearly severable from the balance of the case. If this principle is not followed, there is a very real possibility of a trial result that is inconsistent with the result of the summary judgment motion on essentially the same claim.
[27] Since Hryniak, this court has considered partial summary judgment in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 (CanLII), 120 O.R. (3d) 438 and in Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922 (CanLII), 133 O.R. (3d) 561. Baywood was decided in the context of a motion for summary judgment on all claims, but where only partial summary judgment was granted. CIBC involved a motion for partial summary judgment.

[28] In both Baywood and CIBC, the court analyzed the issue from the perspective of whether (i) there was a risk of duplicative or inconsistent findings at trial and whether (ii) granting partial summary judgment was advisable in the context of the litigation as a whole. In both cases, the court held that partial summary judgment was inadvisable in the circumstances.

[29] The caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives underlying Hryniak.

[30] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal.

[31] Second, a motion for partial summary judgment may by very expensive. The provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed, thereby removing a disincentive for bringing partial summary judgment motions.

[32] Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.

[33] Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.

[34] When bringing a motion for partial summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial summary judgment should be considered to be 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. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.

[35] Lastly, I would observe the obvious, namely, that a motion for partial summary judgment differs from a motion for summary judgment. If the latter is granted, subject to appeals, it results in the disposal of the entire action. In addition, to the extent the motion judge considers it advisable, if the motion for summary judgment is not granted but is successful in part, partial summary judgment may be ordered in that context.

[36] Turning then to the substance of the second ground of appeal, the appellants submit that granting partial summary judgment on the misrepresentation issue provides minimal, if any, efficiency as the action is proceeding to trial on the negligence, breach of contract, and Arthur Wishart Act claims. The misrepresentation claims are largely intertwined with these other claims and partial summary judgment risks inconsistent results.

[37] The respondents reject these submissions, arguing that r. 20.05(1) recognizes the utility of partial summary judgment. The motion judge’s decision is entitled to deference and was appropriate for the litigation as a whole.

[38] As explained in Hryniak, the exercise of powers under the summary judgment rule generally attracts deference. Here the motion judge made an extricable error in principle in failing to consider whether partial summary judgment was appropriate in the context of the litigation as a whole. As the appellants point out, the action is proceeding to trial on the Arthur Wishart Act claims, which include allegations of a breach of the duty of fair dealing and deficient disclosure, the claims in negligence, and for breach of contract. These claims are intertwined with the misrepresentation claims. An award of partial summary judgment in these circumstances may lead to inconsistent results to the extent the misrepresentation claims were not barred due to a limitation period. On the other hand, had the litigation as a whole been considered, partial summary judgment would not have been an appropriate award as it would not serve the objectives of proportionality, efficiency, and cost effectiveness.



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