Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 OR (3d) 561.

Full Decision (PDF)

Counsel:

  • Neil G. Wilson (Appellants)
  • John D. Campbell (Respondents)

Judges: R.G. Juriansz, S.E. Pepall, B.W. Miller JJ.A.

The limited application of motions for partial summary judgment

The Appellants sued the Respondents (their former solicitors) for missing the two-year limitation period, and failing to plead that the six-year limitation period applied.  Among other things, the Appellants also made allegations of misrepresentation against the Respondents.  The Respondents brought a motion for partial summary judgment, and were successful in having the Judgment granted, dismissing the Appellants’ misrepresentation claims.  The Appellants then appealed to the Court of Appeal. 

The Court of Appeal allowed the Appeal, and set aside the award of partial summary judgment.  In doing so, the Court held that motions for partial summary judgment should rarely be granted.  First, they will delay the action, but not bring it to an end.  Second, such motions can be expensive, without bringing the action to an end.  Third, motion for partial summary judgment can waste significant Court resources and time, while still requiring the action to proceed to trial.  Fourth, motions for partial summary judgment run the very real risk of producing inconsistent findings of fact.  Motions for partial summary judgment should only be granted in the clearest of cases, where the issues in question can be easily severed from those in the main action.  The Court wrote:

When bringing a motion for partial summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. 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. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.

Jordan Kofman
Written by

Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.