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

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 apply summary resolution procedures that are shorter and less expensive than trialswhen doing so is fair and just.

One of those options is to proceed by way partial summary judgment, where the court identifiesa 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 isjudged 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.

The leading cases from the Ontario Court of Appeal on when courts ought to grant motions for summary judgment are 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 in 2018 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. For a recent example of the Court of Appeal applying this reasoning, see Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza, 2019 ONCA 6.

Again, discrete issues are best suited for partial summary judgment motions because they do not overlap with the issues to be heard at trial.This is particularly important considering the decision in Mason v. Perras Mongenais, 2018 ONCA 978 at para. 45, where Nordheimer J.A.wrote that “there is nothing in Hryniak that suggests that trials are now to be viewed as the resolution option of last resort. Put simply, summary judgment remains the exception, not the rule.”

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