OCA rules on partial summary judgment

The Ontario Court of Appeal has issued a warning to lawyers that they should only bring partial summary judgment motions in the clearest of cases.

OCA rules on partial summary judgment
Neil Wilson says partial summary judgment can put a strain on judicial resources if not used properly.Photo: Robin Kuniski

The Ontario Court of Appeal has issued a warning to lawyers that they should only bring partial summary judgment motions in the clearest of cases. 

In a recent judgment in Butera v. Chown, Cairns LLP, 2017, the court allowed a $5-million negligence action brought against a law firm to proceed to trial in its entirety and rolled back a lower court judge’s decision to dismiss part of the case.

“A motion for partial summary judgment should be considered 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,” Justice Sarah Pepall wrote in the decision on behalf of a three-judge panel.

Since the Supreme Court of Canada’s 2014 decision in Hryniak v. Mauldin, courts have seen an uptick in the amount of summary judgment motions being brought.

The Hryniak ruling expanded the use of summary judgment to streamline cases that can be decided without trial.

Before that decision, the Court of Appeal had stressed that a restrictive approach to partial summary judgment was necessary. Lawyers say the decision in Butera confirms that the same will apply in the post-Hryniak era.

Neil Wilson, the lawyer who represented the former client, Luciano Butera, says that partial summary judgment can actually undermine access to justice because of delay and expense.

Wilson, who is a lawyer with Stevenson Whelton MacDonald & Swan LLP, adds that such motions can strain judicial resources if not used properly and judiciously.

“I think it will discourage parties from using partial summary judgment,” Wilson says of the decision.

Butera brought the lawsuit against Chown Cairns LLP, a St. Catherines, Ont.-based firm for solicitors’ negligence and lost opportunity damages.

Chown Cairns had acted for the client in a prior lawsuit that was dismissed, as a two-year limitation period had expired.

Butera alleged the firm failed to take the position that a six-year limitation period applied rather than the two-year one.

In the original action, Butera, who owns a Mitsubishi dealership, sued a number of Mitsubishi companies for breach of contract, misrepresentation and negligence, as well as breaches of provisions in the Arthur Wishart Act.

A judge granted summary judgment to Mitsubishi dismissing the action, as the applicable two-year limitations period had passed. He ordered Butera to pay $150,000 in costs for the action and summary judgment motion.

When they appealed that decision, the appellants argued that a six-year limitation period should have applied, but the court struck down that ground as Butera’s lawyers had conceded two years as the appropriate limitations period.

Bringing up the six-year limitations period was raising a new issue, Mitsubishi argued. 

When Butera then sued Chown Cairns for negligence, he claimed $5 million in damages flowing from lost opportunity to argue the merits of the claims.

Chown Cairns then brought its motion for partial summary judgment, arguing that the issue of common law and statutory misrepresentation did not require a trial.

Superior Court Justice Edward Belobaba granted the motion, which dismissed a portion of the damages claim that related to misrepresentation. Belobaba found the appellants had failed to appeal a misrepresentation finding of the original decision.

The Court of Appeal, however, found Belobaba failed to consider whether partial summary judgment was appropriate in the context of the case as a whole.

“These claims are intertwined with the misrepresentation claims,” Pepall wrote.

“An award of partial summary judgment in these circumstances may lead to inconsistent results to the extent the misrepresentation claim were not barred due to a limitation period.”

Pepall added that if the whole case had been considered, partial summary judgment would not serve the “objectives of proportionality, efficiency, and cost effectiveness.”

In the decision, the court laid out four potential risks parties should consider before bringing a motion for partial summary judgment.

Parties need to keep in mind the cost of such a motion, whether the motion risks delaying the final outcome of the case, the increase in summary judgment motions judges are hearing and whether the record available at the hearing of such a motion will be as expansive as the record at trial, the decision said.

Jeff Saikaley, a partner with CazaSaikeley LLP, says the decision is a call to lawyers to reconsider bringing partial summary judgment motions.

“There are some circumstances where those partial summary judgment motions are appropriate and others where they are not,” he says.

He says that in a typical case a partial summary judgment motion could be useful to determine liability but not damages, which could reduce the length and complexity of a trial. But in a case like Butera, where only one of the issues on liability is put forward on a summary judgment motion, Saikaley says a partial summary judgment could cause duplication and inconsistent findings.

John Campbell, who represented the law firm, declined to comment on the decision, as the case is ongoing.

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