Mason v. Perras Mongenais 2018 Ont CA
The Court of Appeal continues its quest to discourage partial summary judgment (see Butera v. Chowns 2017 Ont CA). A client sued his lawyer and the lawyer that his lawyer had retained for allegedly not giving him proper tax advice relating to a matrimonial settlement. The retained lawyer, who had given proper advice to the retaining lawyer, moved for summary judgment and was successful. The Court of Appeal set aside the dismissal because, it said, the advice was sought and provided by way of a tripartite arrangement involving the client, retaining lawyer, and retained lawyer. How that advice was sought and provided would be the subject of evidence from all three participants and therefore a trial was necessary in which all participants were involved. As an aside, we agree with the motion judge’s decision on the merits, but the judge fell afoul of the partial summary judgment criteria when he noted/admitted that summary judgment would save “little evidence or time at trial.” He also stated that he would not accept the rule that partial summary judgment not be granted in a case that might possibly have a risk of duplication or inconsistent verdicts. These statements were like waving a red flag in front of a bull because they were contrary to criteria set down in Butera. The Court stated that summary judgment, rather than trial, remains the exception, not the rule.
Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.