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Partial Summary Judgment Remains a Rare Option For Keeping Costs Low In Civil Matters

Posted On: December, 20 2018

Trial courts continue to iron out the practicalities of the “culture shift” called for by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7 to move away from full trial processes to shorter, less expensive options when doing so is fair and just.

One of those options is to proceed by way of partial summary judgment, where the court identifies a discrete legal and factual issue and renders a decision on this issue separate from litigation as a whole.

Partial summary judgment can mean that one party is judged apart from the larger litigation while the case continues against the rest of the parties, or it can mean that some of the issues between the parties are resolved while the other issues proceed to trial. For recent examples of the latter, see Service Mold + Aerospace Inc. v. Khalaf, 2018 ONSC 5345 and The Bank of Nova Scotia v. 1736223 Ontario Limited, 2018 ONSC 4449.

Earlier this year, Justice Myers of the Ontario Superior Court of Justice in Toronto offered a comprehensive review of the issue in Mason v. Perras Mongenais, 2018 ONSC 1477, which in turn referred to the leading decisions from the Ontario Court of Appeal in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 and Butera v. Chown, Cairns LLP, 2017 ONCA 78.

In Butera, Pepall J.A., writing for the court, observed that partial summary judgment should be considered a rare procedure. Indeed, decisions released at the Superior Court of Ontario this year confirm that it is more likely than not that a motion for partial summary judgment will be dismissed.

The most common reason is that doing so risks duplicating proceedings or producing inconsistent findings, which undermines the expediency offered by motions for summary judgment.

Discrete issues are best suited for partial summary judgment motions because they do not overlap with the issues to be heard at trial. Where there is overlap, the judge hearing a motion for partial summary judgment will ask “whether the risks of duplication and inconsistent findings outweigh the benefits of summary resolution and preclude summary resolution from being proportionate where the case is brought to an end against some but not all of the parties.” For a fulsome discussion relating to partial summary judgment motions, we refer you to the Mason decision.


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