Overview
The appellant, Ms. Passmore, was injured in July 2020 when the bus in which she was riding suddenly slammed on the brakes, causing her to fall from her seat and sustain injuries. She sued the bus driver, the Hamilton Street Railway (HSR) bus company and the City of Hamilton (City) for her injuries.
The defendants filed a defence and a jury notice.
At the pre-trial in July 2023, the defendants indicated for the first time that the City was improperly named as a defendant. The pre-trial judge directed the City to bring a motion for summary judgement within 60 days, failing which the plaintiff could bring a motion to strike the jury notice. The plaintiff was also free to bring a motion to strike the jury notice if she was successful on the summary judgement motion.
The defendants brought the motion for summary judgement and were successful. The motions judge dismissed the claim against the City and stated that though it was a motion for summary judgement, it was actually a motion to determine if jury or judge would decide the case alone. He determined that while the plaintiff submitted that there are valid arguments to support a finding of liability against the City, but such arguments were of “academic interest only.”
The plaintiff appealed the decision.
Result
The appeal was allowed and the City was ordered to pay the costs of the appeal.
Discussion
The motions judge failed to appreciate that the motion before him was a Rule 20 summary judgement motion, not a motion to strike the jury notice. Pursuant to s. 108(2)(xii) of the Courts of Justice Act, if the City were to remain a party to the action the matter must be tried without a jury.
The motions judge failed to appreciate that in moving for the removal of one defendant, the motion was only for partial summary judgement. The reasons provided did not consider the established case law applicable on partial summary judgment motions.
The leading case for partial summary judgement motions is Malik v. Attia, 2020 ONCA 787, which sets out three considerations that support granting partial summary judgement:
- The determination of the case in several parts will prove cheaper for the parties;
- Partial summary judgment will get the parties’ case in and out of the court system more quickly; and
- Partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.
The motions judge did not discuss the appropriateness of partial summary judgement in these circumstances. The motions judge acknowledged in his reasons that granting the motion would not have resulted in any efficiencies of time or expense because the City did not raise the issue until the pre-trial conference. The City’s motion was only scheduled after and as a result of the pre-trial. It was heard three months after the trial was supposed to take place.
The motion required full briefing, cross-examination and argument that could equally have been made at trial. The allegations of joint liability against HSR and the City meant that the trial would require adjudication of the same issues on the same evidence.
Partial summary judgement was not appropriate in the circumstances.
