Ontario Court of Appeal to counsel: not so fast, Hryniak

Ontario Court of Appeal warns against getting too comfortable with partial summary judgment motions

In its recent decision in Butera v Chown, Cairns LLP,¹ the Ontario Court of Appeal issued a stern reminder that motions for partial summary judgment will rarely be welcome by the courts.

In this case, the respondents, Chown, Cairns LLP, had successfully brought a motion for partial summary judgment against the appellants on the sole question that there was no genuine issue requiring a trial with respect to the appellants’ claims of common law and statutory misrepresentation. The respondents had originally intended to bring a full summary judgment motion, but had decided otherwise. The appellants’ claims relating to the Arthur Wishart Act, including claims in negligence and for breach of contract, would therefore proceed to trial regardless of the outcome of the partial summary judgment motion.

The Court of Appeal overturned the decision awarding partial summary judgment, finding there indeed was a genuine issue for trial with respect to the misrepresentation claims.² Although this conclusion on its own was “dispositive,” the court nevertheless considered the issue of granting partial summary judgment and concluded that the trial judge had committed an “extricable error in principle” in failing to consider the appropriateness of partial summary judgment.³

The four dangers of partial summary judgment motions

Although the Supreme Court of Canada’s decision in Hryniak had rewritten the law on summary judgments, the Court of Appeal insisted the caution expressed in its pre-Hryniak jurisprudence relating to partial summary judgments remained applicable.⁴ The court explained the following problems raised by partial summary judgment motions are “anathema to the stated objectives underlying Hryniak,”⁵ namely proportionality, efficiency, and cost effectiveness:

• Partial summary judgment motions delay the resolution of the main action and may be used as delay tactics;
• They can be very expensive;
• They require judges, who are already facing significant responsibility as a result of the increase in summary judgment motions, to spend time and effort writing reasons on issues that do not dispose of actions; and
• The record available at partial summary judgment hearings is likely not as expansive as the record at trial, increasing the danger of inconsistent findings.

Caution ahead

As held by the court, motions 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.”⁶

This decision constitutes a clear warning from the Ontario Court of Appeal not to abuse the availability of partial summary judgment motions as a procedural vehicle. Before bringing such a motion the moving party should therefore consider, in light of the four “problems” outlined above and the objectives of proportionality, efficiency, and cost effectiveness, whether it is appropriate for the particular matter at issue and the litigation as a whole.

Footnotes

1       2017 ONCA 783.

2       At paras. 15-18.

3      At para. 38.

4      At paras. 23, 29.

5      At paras. 29-33.

6      At para. 34.