In our last post , we wrote about the December 10, 2020 decision of the Court of Appeal in Malik v Attia[1] . It established that when faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties:
- Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;
- Show how partial summary judgment will get the parties’ case in and out of the court system more quickly; and
- Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.
In the Toronto region, this screening function is undertaken in Civil Practice Court. On February 9, 2021, Justice F.L. Myers delivered his decision in Lakefield Properties Ltd. v The Otonabee Region Conservation Authority.[2] We believe it to be the first application of the Malik screening test by a Superior Court judge. Myers J. and Ramsay J. had previously considered Malik but in connection with the actual summary judgment motion, as opposed to at the screening stage. See: RNC Corp. v Johnstone[3] and Marco Bailetti v Gale Partners LP,[4] respectively. Both motions, in keeping with the theme of this post, were dismissed. Interestingly, in RNC (which was not a partial summary judgment case), Myers J. cautioned that motions for summary judgment on limitations issues can engage the “dreaded ‘trial in a box’” phenomenon, where:
The judge hears a few hours of submissions at a high level of abstraction. He or she is then left to wade through the banker’s box(es) of material to make detailed findings on contested evidence without having heard the detailed evidence led by counsel and contextualized by the trial narrative unfolding over several days.
Lakefield was another partial summary judgment motion based on an alleged expired limitation period brought by one of three sets of defendants. Another defendant had also pleaded the limitation defence but had chosen not to join in the motion.
Myers J. first dealt with the argument that the motion was not for partial summary judgment since the moving defendant would be released from the action in full if it succeeded on the motion. Justice Myers rejected this position: “That argument has been conclusively rejected by the Court of Appeal in Mason v. Perras Mongenais, 2018 ONCA 978”.
Myers J. then turned to the real issue – the risk of inconsistent findings. Following Mason, he first noted that the motions court should not be weighing the relative risks and benefits of a partial summary judgment motion. Rather, there is a bright line rule that partial summary judgment is not available when there is any risk at all of duplication of findings or inconsistent verdicts at a proposed motion and the trial. The facts and causes of action on which partial summary judgment is sought cannot be said to be discrete or readily bifurcated from the claims against the remaining defendants if a risk exists of duplication or inconsistent verdicts.
He then concluded that “the existence of the common issue concerning the limitation period therefore must result in the motion being refused”. Myers J. then added this important advice:
Civil litigation is about money. Participating always involves a cost benefit analysis. If a defendant cannot withstand the delays in the current system, it always remains free to settle. But what it cannot do is decide to be aggressive to impose delay, costs, and risk of unjust duplication and inconsistent verdicts on the other parties and the court.
And so it would appear that partial summary judgment is truly a thing of the past. There would be in our view only very rare and exceptional cases where the bright line rule might be found to not apply or otherwise inapplicable. In Toronto, certainly, counsel considering a partial summary judgment motion should think long and hard whether it will pass the screening test at CPC.
[1] 2020 ONCA 787.
[2] 2021 ONSC 1061.
[3] 2020 ONSC 7751.
[4] 2020 ONSC 6616.
Check out our previous blog Malik v Attia: Ontario Court of Appeal further restricts partial summary judgment to learn more.
