Do your client a favour and stay away from partial summary judgment

The Ontario Court of Appeal has, for the third time, delivered a clear message to Ontario litigants: Stay away from partial summary judgment motions. If there is any risk (no matter how small) of inconsistent findings at trial, the motion will likely fail.

The Ontario Court of Appeal has, for the third time, delivered a clear message to Ontario litigants: Stay away from partial summary judgment motions. If there is any risk (no matter how small) of inconsistent findings at trial, the motion will likely fail. This may seem unfair and it is hard for us to accept, but we cannot ignore it. Even if it seems like the right strategy, we may be doing our clients a disservice by recommending partial summary judgment.

In the 2018 decision Mason v. Perras Mongenais, a defendant in a multi-party proceeding successfully brought a partial summary judgment motion to dismiss the claim against it. The decision was very well reasoned by the motions judge and the risks were acknowledged. Despite this, the Court of Appeal overturned the decision and, as a result, the defendant ended up in a much worse position than when they started.

In Mason, the plaintiff sued two law firms, alleging that they didn’t consider tax consequences of a settlement. One of the firms brought a motion for partial summary judgment to dismiss the claim against it. Justice Fred Myers granted the motion and held that “the cost and delay to [the law firm] of requiring it to participate in a trial when its lack of liability is so clear would be unjust and amount to a failure of justice.”

The Court of Appeal overturned Mason on the basis that the claim could not be easily separated from the remaining issues left over at trial. The risk of inconsistent findings made partial summary judgment inappropriate.

Mason is the latest in a trilogy of Court of Appeal decisions spanning over five years. All three decisions emphasize that partial summary judgment is, with few exceptions, not welcome in Ontario courts.

The trilogy began in 2013 with Baywood Homes v. Alex Haditaghi. In Baywood, the defendants brought a motion for summary judgment to dismiss claims against them and for judgment on their counterclaim. Justice Edward Belobaba granted partial summary judgment to dismiss the claims and sent the counterclaim to trial. The decision was overturned by the Court of Appeal on the basis that partial summary judgment could have led to inconsistent findings at trial.

In October 2017, another roadblock appeared in Butera v. Chown, Cairns LLP. In Butera, the defendant successfully moved for partial summary judgment to have one component of the plaintiff’s claim dismissed and the rest of the action was sent to trial. The Court of Appeal again overturned the decision and held that the dismissed claim was intertwined with the issues to be determined at trial. Therefore, deciding the claim summarily could have led to inconsistent results. The court emphasized that partial summary judgment should be limited to instances where specified issues can be easily separated from the main action and be dealt with quickly and cost effectively.

Baywood and Butera have since been cited more than 200 times in subsequent decisions and have brought about an institutional response in Toronto. In my experience, when lawyers attend civil practice court to get a motion date, the sitting judge will often refuse to even schedule partial summary judgment motions, given their slim chance of success. As a result, many partial summary judgment motions never get off the ground in the first place.

Despite the stern warnings from the Court of Appeal and the resulting response, Ontario litigants have not been getting the message. Since Butera, the number of partial summary judgment motions commenced in Ontario has barely slowed down. According to data I have culled from public court decisions, there have been almost 200 partial summary judgment motions brought in Ontario in the last three years, and this data does not account for the number of motions that are shut down at civil practice court. 

It appears that the Court of Appeal is now hoping that the third time will be a charm in dissuading partial summary judgment once and for all.

It should be emphasized that, in Mason, Myers carefully canvassed the law on partial summary judgment and was well aware of the pitfalls. His honour recognized that judges must be careful to evalute the risks of duplicative proceedings and inconsistent findings at trial. With this in mind, he held that dismissing a claim against a key party could secure the most efficient, affordable and proportionate outcome for all.

Despite Myers’ clear effort to carve out a path for partial summary judgment, the Court of Appeal was not having it. In overturning Mason, it was held that Myers failed to heed the risks of partial summary judgment, as stated in Baywood and Butera. The court also stated that “summary judgment remains the exception, not the rule.”

If you were not dissuaded yet, Mason should be a much-needed wakeup call. The Court of Appeal has emphasized on no less than three occasions that, with very few exceptions, partial summary judgment should generally not be granted. Ontario lawyers should take this warning seriously before commencing their next partial summary judgment motion.

Even if a single claim in a larger proceeding seems frivolous, getting the claim dismissed summarily may not be an easy task. The same holds true if you represent a party that has no business being part of a lawsuit. If you score a motions judge who is bold enough to grant partial summary judgment, the decision may not hold up on appeal. So, I’d recommend that, even though a partial summary judgment motion may seem like a good strategy, you may not be doing your client any favours by proceeding with the motion, provided you even get to schedule it in the first place.

This may not be an easy pill to swallow for some, because partial summary judgment has always been a useful tool, especially to weed out meaningless claims. But unless the Supreme Court of Canada steps in and says otherwise, this is something that Ontario lawyers must come to terms with.

Daniel Waldman is an associate in the litigation group at Daoust Vukovich LLP. His practice focuses on real property litigation, construction law and debt collection matters.

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