Use At Your Own Risk: Partial Summary Judgment Motions

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Business Litigation, Civil Litigation, Commercial, Franchise Law, Misrepresentation, Negligence, Summary Judgment0 Comments

The Ontario Court of Appeal in Butera v. Chown, Cairns LLP, 2017 ONCA 783, recently overturned an award of partial summary judgment in a professional negligence action and provided guidance on the appropriate circumstances in which partial summary judgment motions should be brought.

In the original action, the plaintiffs brought an action against various Mitsubishi companies after their Mitsubishi dealership franchise failed, claiming damages for breach of contract, misrepresentation, negligence and breaches of the Arthur Wishart Act.  The original action was dismissed on summary judgment because the applicable two-year limitation period had passed.  The plaintiffs were also ordered to pay $150,000 in costs for both the action and the summary judgment motion.

The plaintiffs appealed the summary judgment motion decision and argued that a six-year limitation period was applicable notwithstanding that they had conceded at the motion that the applicable limitation period was two years.  The appeal was dismissed.

The plaintiffs then brought the subject action against their former lawyers for negligence.  The plaintiffs claimed damages for lost opportunity to argue the merits of their claim on appeal because their former lawyers failed to argue that the six-year limitation period was applicable at the summary judgment motion.

The former lawyers brought a partial summary judgment motion seeking a dismissal of the lost opportunity claims for common law and statutory misrepresentation.  The motion judge found that the plaintiffs did not lose any opportunity to pursue the misrepresentation claims on appeal because the plaintiffs did not appeal the misrepresentation finding in the original action.  The motion judge granted the motion for partial summary judgment.

The Court of Appeal, however, found the motion judge erred in concluding that the plaintiffs did not appeal the misrepresentation finding in the original action.  The plaintiffs had appealed the judgment which would include all claims as a matter of law.  Secondly, the Court of Appeal found the motion judge failed to consider whether granting partial summary judgment was appropriate under the circumstances.

In determining whether partial summary judgment should be granted, the court should consider the following factors: (1) whether there was a risk of duplicative or inconsistent findings at trial; and (2) whether granting partial summary judgment was advisable in the context of the litigation as a whole.

The Court of Appeal outlined four factors that the moving party should consider in deciding whether to seek partial summary judgment:

  1. Partial summary judgment motions cause the resolution of the main action to be delayed;
  2. Partial summary judgment motions are expensive;
  3. Partial summary judgment motions are an unnecessary burden on judicial resources;
  4. Partial summary judgment motions increase the risk of inconsistent findings.

The Court of Appeal also wrote:

A motion 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.

The Court of Appeal held that there was little to be gained by granting partial summary judgment on the misrepresentation claims when the action was proceeding to trial on the negligence, breach of contract and Arthur Wishart Act claims.  The misrepresentation claims were “largely intertwined with these other claims and partial summary judgment risks inconsistent results”.

The lawyers at Gilbertson Davis LLP have extensive experience and expertise in summary judgment motions.  If you require legal representation in summary judgment matters, please contact us for an initial consultation.


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About the Author
Nick P. Poon, B.Sc. (Hons.), B.A., J.D.

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.

Practitioner in Civil Litigation with a focus in insurance defence and commercial litigation. Bio | Contact

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