Partial Summary Judgments: Cost Savers or Money Pits?

by Shadi Katirai | Oct 23, 2019

Introduction

Over the last several years the Ontario Court of Appeal has come out with several strongly worded decisions against providing partial summary judgment. Despite this, litigants continue to bring these motions, and thus far in 2019 are receiving a reasonable degree of success when proceeding under the right circumstances.

This paper will review the culture shift of summary judgment motions generally. It will then define partial summary judgment motions and examine why they require a different analysis than standard summary judgment motions.

We will explore the decisions from the Court of Appeal over the last year that caution against partial summary judgment, followed by a review of the most recent cases at motions court, applying the Court of Appeal’s guidance. Finally, this paper will provide a checklist to assist parties in deciding whether they should proceed with a partial summary judgment motion or not.

Background

In 2010, the Rules of Civil Procedure were amended to improve the efficiency and effectiveness of the civil justice system, which included amendments to the rules of summary judgment, with the aim of making it easier for Ontarians to achieve a final disposition on their matter without going through the expense of trial.

In 2014, the Supreme Court called for a “culture shift” in the landmark case Hryniak v. Mauldin.[1]  The Court acknowledged that many Canadians simply cannot afford to sue when they are wronged or to defend themselves when they are sued, because trials have become increasingly expensive and lengthy. The Court determined that a culture shift was required that “must recognize that a process can be fair and just, without the expense and delay of a trial.”[2]  Hryniak enhanced powers available under Rule 20 for summary judgment to achieve a proportionate, more expeditious, and less expensive means to achieve a just result.

In Hryniak, Justice Karakatsanis contemplated partial summary judgment motions in particular and addressed the circumstances under which they would be appropriate:

If some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant.  Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.  On the other hand, 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.[3]

Ultimately, the goal of Hryniak was to broaden the powers of the court with the goal of improving access to justice; however, the question remains as to whether summary judgments are being granted as much as had been expected post-2014. This is especially true with regards to partial summary judgment motions.

What is a partial summary judgment?

A partial summary judgment occurs when the court makes a determination on an issue which does not dispose of the entire action.

Partial summary judgment motions typically come in two forms. The first occurs when one or more issues are bifurcated from the rest of the action and then decided on. This can occur when the moving party requests that the motions judge determine only one or some key issues before trial but not all, or, more frequently, when the motions judge only grants summary judgment on one or some of the issues and determines that the remaining issues require a trial for resolution.

The second type of partial summary judgment motion occurs when one or more of the defendants is successfully extricated from the action, but the other parties continue on to trial. In both forms, only part of the action is disposed of, and the remainder of the issues and/or parties go to trial.

Courts have held that partial summary judgment should be a rare procedure used only in cases where issues can be easily bifurcated from the main action and dealt with expeditiously and in a cost-effective way.[4]

Four Reasons Why Courts Don’t Want to Grant Partial Summary Judgments

The principles that guide whether partial summary judgment is appropriate are more complex than those that apply to summary judgment motions generally.[5] The very concept of a partial summary judgment motion, by its nature, may seem to directly counter the goals of the culture shift. Rather than reducing the cost and time of resolving a dispute in civil court, these motions involve adding an expensive and lengthy process to an action that will go to trial regardless of the outcome.  They also involve risks of duplicative or inconsistent findings. As such, courts are especially hesitant to grant partial summary judgments.

The Court of Appeal has overturned decisions granting partial summary judgments in several key cases. Baywood Homes Partnership v. Hadiaghi[6] was the first key case post-Hryniak warning of the risks of granting partial summary judgments.   This warning was repeated in the 2017 decision Butera v. Chown, Cairns LLP, where the Ontario Court of Appeal addressed four specific reasons for this hesitation:

  1. Partial summary judgment motions cause the resolution of the rest of the action to be delayed. As a result, these motions may be brought as a delay tactic which causes the opposing party to waste time and legal fees on a motion that will not result in the disposition of the action in its entirety or possibly at all. Furthermore, the possibility of their appeal is a real concern that has the potential to cause a further delay.[7]
  2. Partial summary judgment motions may be very costly. As the Court explained in Butera, the “provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed.”[8] Evidently, this shift significantly steepens the risk involved in bringing a partial summary judgment motion.
  3. Judges have already been made to face a significant increase and shift in responsibility with the volume of summary judgment motions that has flowed since Hryniak. In the context of partial summary judgment motions, they are required to spend time hearing motions and writing comprehensive reasons on a motion that does not dispose of the action.[9]
  4. The record available to the court hearing a partial summary judgment motion is very likely to be less expansive than the record available at trial. This discrepancy has the effect of increasing the danger of resulting in inconsistent findings between those of the motion judge and those of the trial judge. [10]

In Mason v. Perras Mongenais[11] the motions judge attempted to isolate the decisions in Butera and granted a partial summary judgment in favour of Perras Mongenais, one of the defendants, dismissing the case against it, while letting the remainder of the case to proceed to trial. In a stern decision, the Court of Appeal stated that the liability of Perras Mongenais could not 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, and thus there was a risk of inconsistent findings at trial.”[12]

In Vandenberg v. Wilken[13], the motions judge granted partial summary judgment to a defendant, and found that the counterclaim and third party claim would proceed to trial. In April of 2019, the Court of Appeal overturned the motions judge’s decision finding that there was a risk of duplicative or inconsistent findings at the trial of the counterclaim and third party claim and determined that the granting of partial summary judgment was not advisable in the context of the litigation as a whole.

In determining a summary judgment motion where the decision will dispose of the entire matter, judges expect that the parties have put their “best foot forward”[14] and put all the evidence required to decide the matter before the court. In partial summary judgments, the motions judge does not generally have this luxury. She must consider whether better evidence could develop, and, in particular, whether inconsistent facts may arise.   If any such danger is contemplated, then partial summary judgment ought not to be granted. We observe, generally, that a central concern in granting partial summary judgments is that the motions judge’s findings will constrain the trial judge or lead to a risk of inconsistent finding at trial.

As a result of the Court of Appeal’s repeated insistence that, with very few exceptions, partial summary judgments should generally not be granted, there has been concern voiced by the Ontario bar in various legal commentary with respect to interpretive erosion such that partial summary judgments generally are not as available to their clients as had been hoped when Hryniak was released.

Recent Trends in Partial Summary Judgment Motions

Interestingly, despite the Court of Appeal’s clear warnings in Baywood, Butera, Mason and Vandenberg, the appetite amongst litigants for proceeding with partial summary judgment motions remains

We have found 20 reported motions for partial summary judgment from June 1, 2019 through September 1, 2019.[15] Of these, 13 were granted as partial summary judgments, and there were only seven instances in which partial summary judgment was sought by a party and denied. Admittedly, this is a narrow sample of time, and there will be additional cases that were decided but not reported and thus not included in the survey.

The reasonable rate of success could be a trickledown effect from the previous Court of Appeal decisions, such that the parties proceeding with these motions, in light of the strong caution, are those that most merit the consideration.   Civil Practice Court has also filtered out cases, at least in the Toronto Region, that were not likely to succeed.

Partial Summary Judgment Decisions from the Court of Appeal in 2019

Our search has uncovered at least seven decision from the Court of Appeal in 2019 where partial summary judgment decisions of the lower court were appealed.[16] Please refer to Table 2 for the complete listing of the cases.

Service Mold + Aerospace Inc. v. Khalaf[17] most strongly reflects the spirit of the Court of Appeal cases previously cited. The Court of Appeal found that the motion judge erred in principle when evaluating the risk of overlap in the evidence that would come out at trial.   The motions judge was criticized as

she looked to see whether overlap had been demonstrated. To the contrary, she should not have proceeded to partial summary judgment unless she was satisfied affirmatively that the issues before her could readily be bifurcated without causing overlap that could lead to inefficient duplication or a material risk of inconsistent findings or outcomes.[18] (emphasis added).

The Court of Appeal also commented on the fact that it took the motions judge 12 months of deliberation in order to write two decisions, resulting in a significant expenditure of judicial resources and delay to the action as a whole.

The remainder of the cases before the Court of Appeal, however, were either upheld or overturned on only some of the issues decided, meaning that they did not take issue with the granting of partial summary judgment on principle, but disagreed with a different aspect of the lower court’s decision.

In cases such as Brown v. Laurie[19] the Court of Appeal continues to cite Butera; however, in this instance, it does not interfere with the trial judge’s discretion. The Court states:

The appellants further submit that the motion judge erred in granting summary judgment on the Proceeds claim but directing a trial for the promissory note claim. They contend that both claims involve intertwined issues, rendering it inappropriate to grant partial summary judgment.

We disagree. Mr. Brown moved for summary judgment on his entire claim. The motion judge was alive to the risks of granting summary judgment on only part of the claim. He canvassed the factors discussed by this court in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561 at paras. 26 to 35. He concluded that the dangers of duplicative or inconsistent findings did not arise in the circumstances: at para. 63. As a result, he granted partial summary judgment in respect of the Proceeds and directed the claim as to the validity and enforceability of the promissory note to proceed to trial.[20]

Although the Court in Brown dismisses the appeal, it goes on to criticize the delay that resulted from the partial summary judgment motion, noting that it was initially argued one year before the appeal was heard and that the case would have been better off proceeding to trial rather than summary judgment.   The Court directed that before scheduling extensive summary judgment motions, “we would encourage both counsel and the motions Bench to consider faster and cheaper alternatives for conducting a final adjudication on the merits of the claim. This action required no more than three days for trial. Had that trial taken place a year ago, the parties would not be facing the prospect of further litigation costs following this decision.”[21]

Checklist of Considerations When Deciding Whether to Proceed with Partial Summary Judgment

Given courts’ expressed hesitation to granting partial summary judgment motions combined with their apparent willingness to grant them given the right circumstances, it is useful examine the general questions the court will apply in instances where partial summary judgments are considered. We list the central questions below as part of a “checklist” to assist counsel and clients in their decision as to whether to proceed with a motion that potentially involves partial summary judgment.

a) Can the issue or issues for which you seek partial summary judgment be clearly and readily bifurcated from the action as a whole?[1]

  • If the answer to this question is “no”, then moving for partial summary judgment motion is not advised.
  • Examples of the types of issues that courts have found capable of being readily bifurcated from the action as a whole on more than one occasion include limitation periods and liability (as distinct from the quantum of damages).
  • Issues relating to credibility often lead to the failure of a summary judgment motion, as they can hardly ever be bifurcated from the rest of the action.

 

b) Can the issue or issues for which you seek partial summary judgment be dealt with expeditiously?[2] Or, will your motion for partial summary judgment cause a delay because a ruling and reasons on the discrete issue cannot be made expeditiously?[3]

  • The Court will be particularly loath to grant partial summary judgment if the motion is perceived as a tactical device “to wage a war of attrition” by the moving party.

 

c) Will bringing your motion for partial summary judgment lead to added expense?[4]

  • If your matter can be resolved with a short trial, then your best course of action may be to proceed with trial, rather than invest in a partial summary judgment that will be almost as long, but not determinative of the action. [5]

 

d) Is the motion record comprehensive in its current state and unlikely to improve with delay?[6]

  • The risk of inconsistent findings is one of the foremost concerns that courts have expressed when it comes to partial summary judgments. Therefore, if the answer to this question is not unequivocally “yes”, then bringing a motion for partial summary judgment is not advised.

 

e) Will a finding on this issue(s) narrow the issues to be determined at trial, in a way that ensures there will be no need to re-argue the point at trial?[7]

  • If the answer to this question is “no”, then moving for partial summary judgment motion is not advised.

 

f) Is it possible that your motion can be construed as an unproductive use of scarce judicial resources?[8]

  • Since the access to justice crisis is such a grave concern among members of the legal profession and especially the courts, it would be particularly unwise to bring a motion that has a significant chance of wasting judicial resources.

 

Conclusion

The most recent decisions in 2019 demonstrate that despite the Court of Appeal’s warnings that partial summary judgments are a rare procedure, the appetite among litigants remains high both to extricate themselves from an action and to narrow issues before trial. Our analysis reveals that out of the reported partial summary judgments contemplated over the summer of 2019, a slim majority was actually granted. Thus, litigants can be rewarded with a reasonable degree of success when they proceed with caution and heed the dangers articulated by the Court of Appeal. In the case of Brown, the Court of Appeal deferred to the motions judge’s decision to grant partial summary judgment but it remains to be seen whether this will be a trend or an exception.

It is difficult for litigants, especially those who are held hostage to a larger action with multiple defendants, not to take action and move for their release when they perceive that there is no viable cause of action against them. However, unless they can readily bifurcate their issues from those faced by other litigants and convince the court that it will not face the prospect of (1) inefficient duplication or (2) a material risk of inconsistent findings at trial, [30] moving for partial summary judgment is likely doomed and will amount to a money pit for clients.

We therefore conclude that when an issue can be easily and clearly bifurcated from an action and the items provided in the checklist above can be satisfied, partial summary judgments can be viable tool for litigants so long as they are approached with caution and diligence.

[1] I wish to thank Jillian Ohayon, student-at-law at Stieber Berlach LLP for her invaluable assistance in the preparation of this paper.

[2] Hryniak v Mauldin, 2014 SCC 7.

[3] Ibid at para 27.

[4] Ibid at para 60.

[5] For example, Rockford v Haque, 2019 ONSC 474.

[6] Service Mold + Aerospace Inc. v Khalaf, 2019 ONCA 369 at para 14.

[7] Baywood Homes Partnership v Haditaghi, 2014 ONCA 450.

[8] Butera v. Chown, Cairns LLP, 2017 ONCA 783 [Butera].

[9] Ibid at para 31.

[10] Ibid at para 32.

[11] Ibid at para 33.

[12] Mason v Perras Mongenais, 2018 ONCA 978 [Mason].

[13] Ibid at para 23.

[14] Vandenberg v Wilken, 2019 ONCA 262.

[15] Dhatt v Ghag, 2019 ONSC 5445 at para 14.

[16] For complete listing, refer to Table 1 on page 8.

[17] For complete listing of Court of Appeal cases, refer to Table 2 on page 10.

[18] Service Mold + Aerospace Inc. v Khalaf, 2019 ONCA 369.

[19] Ibid at para 18.

[20] Brown v Laurie, 2019 ONCA 175 [Brown].

[21] Ibid at paras 22-23.

[22] Ibid at para 25.

[23] Butera, supra note 8 at para 34.

[24] Ibid.

[25] Mason, supra note 12 at para 41; Ip v Olokun, 2019 ONSC 5265 at para 10.

[26] Mason, supra note 12 at para 41.

[27] Brown, supra note 13.

[28] Ip v Olokun, 2019 ONSC 5265 at para 10.

[29] Ibid.

[30] Mason, supra note 12 at para 41.

[31] Pandit v Patel, 2019 ONSC 3515.

[32] Search parameters focused on the search term “partial summary judgment” on both CanLII and QuickLaw. We looked at each Ontario Superior Court of Justice case within our date range.

[33] Using QuickLaw, we searched for “partial summary judgment”, narrowed the jurisdiction to “Ontario”, and then narrowed the court level to “Ontario Court of Appeal”. We looked at all of the cases from 2019.

Table 1: PARTIAL SUMMARY JUDGMENT DECISIONS IN ONTARIO

June 1, 2019 to September 1, 2019[1]

Case Name Decision
6056628 Canada Inc. v. 2350894 Ontario Inc., 2019 ONSC 4523 Partial summary judgment granted.
Ashcroft Homes Inc. v. Aviva Insurance Co. of Canada, 2019 ONSC 4634 Partial summary judgment granted.
Clarke v. Rouge Valley Health System, 2019 ONSC 3082 Partial summary judgment granted.
Dhatt v. Ghag, 2019 ONSC 5445 Partial summary judgment granted.
Elias v. Van Zanten, 2019 ONSC 5248 Partial summary judgment granted.
Enterprise Rent-A-Car v. Richards, 2019 ONSC 5201 Partial summary judgment granted.
Extreme Sandbox, LLC v. KGM Simulation Inc., 2019 ONSC 4112 Partial summary judgment granted.
Gates v. Gates, 2019 ONSC 5416 Partial summary judgment motion initially dismissed by Master and decision upheld on appeal before Judge of Superior Court.
H.R. Doornekamp Construction Ltd. v. Attorney General of Canada, 2019 ONSC 3101 Partial summary judgment denied.
Hutchison-Perry v. Perry, 2019 ONSC 4381 Partial summary judgment denied.

*Note that this motion was not initially brought as a summary judgment motion

IP v. Olokun, 2019 ONSC 5265 Partial summary judgment granted.
Kentner v. Stefanovic, 2019 ONSC 2386 Partial summary judgment granted.
Khosa v. Homelife/United Realty Inc., 2019 ONSC 4788 Partial summary judgment denied.
Luwish v. Graywood Group et al., [2019] O.J. NO. 3294 Partial summary judgment granted.
 Mann v. Chac-Wai, 2019 ONSC3965 Partial summary judgment denied.
Pandit v. Patel, 2019 ONSC 3515 Partial summary judgment motion dismissed.
Reihani v. Goudarzi, 2019 ONSC 4086 Partial summary judgment motion dismissed.
Rockford v. Haque, 2019 ONSC 474 Partial summary judgment granted.
Steele Industrial Inc. v. Elliott, 2019 ONSC 3904 Partial summary judgment granted.
Temple v. Moorey, 2019 ONSC 3723 Partial summary judgment motion granted.     Motion to set aside dismissed.

 

Table 2: COURT OF APPEAL DECISIONS ON

PARTIAL SUMMARY JUDGMENT MOTIONS

January 1, 2019 – October 15, 2019[33]

Brown v Laurie, [2019] O.J. No 1164

Judgment: March 6, 2019

Partial summary judgment upheld on appeal.
Dawe v. Equitable Life Insurance Co. of Canada, [2019] O.J. No. 3217

Judgment: June 19, 2019

Partial summary judgment overturned on only one of several issues.
Environs Wholesale Nursery Ltd. v. Environs Landscape Contracting Ltd., 2019 ONCA 547

Judgment: July 2, 2019

Partial summary judgment initially granted and then overturned on appeal, granting summary judgment to the appellant.
Extreme Venture Partners Fund I LLP v Varma, [2019] OJ No 2719, 2019 ONCA 446

Judgment: May 28, 2019

Partial summary judgment upheld on appeal (court of appeal did not consider it to be partial as it disposed of the claim as against one defendant in its entirety).
Mikelsteins v. Morrison Hershfield Ltd., [2019] O.J. No. 3336

Judgment: June 20, 2019

Partial summary judgment overturned on only one of several issues decided by motions judge.
Mississippi River Power Corp. v. WSP Canada Inc., [2019] O.J. No. 4903

Judgment: September 30, 2019

Partial summary judgment upheld on appeal.
Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369

Judgment: May 7, 2019

Partial summary judgment initially granted and then overturned on appeal.