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Summary Judgment – Partial

Posted on October 26, 2017 | Posted in Civil Litigation, Five Liners

Butera v. Chown Cairns LLP 2017 Ont CA

Client’s action against franchisor was dismissed by way of a summary judgment motion after an adverse limitations finding. The motions judge also noted, in obiter (i.e. discussions that were not germane to the final result), that the defendant’s alleged representations were not misrepresentations. The motions judge did not deal with other causes of action alleged in the claim, such as negligence, breach of contract, and breach of the Arthur Wishart Act. The client appealed that decision; the Court of Appeal dismissed the appeal on the limitation grounds. The client then sued his lawyer claiming that the lawyer argued his case negligently. The lawyer brought a summary judgment motion, ultimately relating only to the misrepresentation issue, arguing that this issue was res judicata (i.e. already decided by the motions judge). The lawyer was initially successful in the partial summary judgment motion.

The Court of Appeal reversed the decision for 2 reasons. (i) the original motion judge’s decision was based on a limitation problem, not his findings relating to misrepresentation; therefore the issue was not res judicata; (ii) the matter was not suitable for a partial summary judgment.

To determine whether a matter is suitable for a partial summary judgment, the issue on which judgment is sought must be clearly severable from the balance of the case. If it is not, the following problems arise:

a) The motion causes the resolution of the main action to be delayed and therefore can be used as a delay tactic.

b) A motion for partial summary judgment may be very expensive. The prior provision for a presumptive cost award is now gone.

c) It causes judges to spend a significant amount of time hearing the motion and writing comprehensive reasons on an issue that does not dispose of the action.

d) The record available at the hearing of the motion will likely not be as extensive as the record at trial, thereby increasing the danger of inconsistent findings.

The court noted that a motion for partial summary judgment should be considered to be a rare procedure reserved for an issue or issues that may readily be bifurcated from those in the main action and dealt with expeditiously and in a cost-effective manner.

In this case, the misrepresentation claims were largely intertwined with other claims and a partial summary judgment risked inconsistent results. Accordingly, it was not an appropriate procedure because it would not serve the objectives of proportionality, efficiency, or cost-effectiveness.


Jonathan Speigel


Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.



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