Motions For Partial Summary Judgment: Proceed With Caution

In Hryniak v Mauldin, the Supreme Court of Canada held that a summary judgment motion is appropriate if: (i) it can achieve a fair and just adjudication; and (ii) it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.1

However, summary judgment motions may not always be the best course of action in the context of the litigation as a whole and may increase cost and delay, particularly in the case of partial summary judgment motions which, unlike motions for summary judgment, do not result in the disposal of an entire action. Karakatsanis J. observed in Hyrniak that it may not be in the interests of justice to grant summary judgment against a single defendant if the claims against other parties will proceed to trial in any event.2

Since Hryniak, the Ontario Court of Appeal has considered the appropriateness or advisability of partial summary judgment motions in Baywood Homes Partnership v Haditaghi3, Hamilton (City) v Their + Curran Architects Inc.4 and Canadian Imperial Bank of Commerce v Deloitte and Touche.5

In Baywood, Hamilton and CIBC, the Court analyzed the issue from the perspective of whether: (i) there was a risk of duplicative or inconsistent findings at trial, and (ii) granting partial summary judgment was advisable in the context of the litigation as a whole. In each of these cases, the partial summary judgment motion was found to be inadvisable in the context of the litigation as a whole because, among other things:

the facts underlying the issues on the motion were too closely intertwined with the facts underlying the issues that would proceed to trial;6 the evidence available at trial would provide the trial judge a fuller appreciation of the relationship between the parties and the factual context;7 and the motion did not result in any party being released from the proceeding and did not eliminate or materially shorten the length of trial required.8 The Ontario Court of Appeal recently added further commentary on partial summary motions in Butera v Chown, Cairns LLP, where the Court noted that in addition to the danger of duplicative and inconsistent findings, partial summary judgment motions "raise further problems that are anathema to the stated objectives underlying Hryniak".9 The Court identified the following four problems:

Partial summary judgment...