Simon's Megalomaniacal Legal Resources

Civil Litigation - Summary Judgment - Partial (2)

. Stanley v. Lucchese

In Stanley v. Lucchese (Ont CA, 2023) the Court of Appeal briefly considered factors invlved in allowing a motion for partial summary judgment:

[3] The appellant argues that the motion judge erred by granting partial summary judgment on the guarantee by not considering the three inquiries this court proposed in Malik v. Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215.

[4] We do not agree that the motion judge erred. She considered all relevant factors canvassed in Malik and was under no obligation to specifically refer to the case by name.

[5] It was apparent to the motion judge on the record before her that partial summary judgment would result: (1) in a costs savings, at least for the respondent; (2) resolve a significant discrete issue; and (3) do so without risk of inconsistent findings.

. Thompson v. Herschel Rescue and Training Systems

In Thompson v. Herschel Rescue and Training Systems (Ont CA, 2023) the Court of Appeal considers (and allows) an appeal against a partial summary judgment which dismissed a personal injury action against a municipality, one of several defendants. As is common with such cases, the appeal issue revolved around the possibility of inconsistent findings in the bifurcated proceedings:

Analysis

[10] The motion judge quoted para. 34 of Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, in which this court stated that partial summary judgment is a “rare procedure”, reserved for 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. However, he did not advert to the warning in Cook v. Joyce, 2017 ONCA 49, a summary judgment case, where at para. 92, this court stated: the more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record. See also Truscott v. Co-operators General Insurance Company, 2023 ONCA 267, 482 D.L.R. (4th) 113, at paras. 58-59.

[11] Credibility disputes are key to determining the issues in this case and the motion judge erred in principle by failing to recognize that. The conflicting evidence about the Town’s involvement in the training course could not be resolved without credibility determinations being made on matters that include the following: whether the Town provided facilities at no cost to Mr. Harrison to run the course; which parts of the course, if any, were held in the fire hall part of the Town facility; was Town fire hall equipment used in the training; were one or more Town fire officials present at some parts of the training; and, whether the Town was aware that a participant in an earlier similar training course offered by Mr. Harrison had died when it agreed to allow him to offer the program in Town facilities.

[12] These issues overlap with those left for trial relating to Herschel and Mr. Harrison. Because the issues are inextricably intertwined, deciding those relating to the Town’s involvement on the Motion leads to the possibility of inconsistent findings and substantive injustice. The factual findings must be left to the trial judge who, with the benefit of hearing all the trial testimony and any further productions, will have a fuller appreciation of what transpired and the relationships among the parties. That appreciation is crucial to fairly decide the allegations against all the defendants.

. Froom v. Lafontaine

In Froom v. Lafontaine (Ont CA, 2023) the Court of Appeal cites the lower court stating clearly the procedural concern with 'partial summary judgment':

[80] The standard of review of a decision to grant summary judgment is deferential, unless there are extricable errors.[38] Summary judgment might not be in the interest of justice where there is a “risk of duplicative proceedings or inconsistent findings of fact”.[39] The motion judge was alive to that issue in this case, and stated:

Partial summary judgment should only be granted in the clearest of cases where the issue on which summary judgment is sought is clearly severable from the balance of the case: Butera v. Chown, Cairns LLP, 2017 ONCA 783, para. 34. The factors to be considered include: (1) whether the matter to be resolved by summary judgment can be bifurcated from the remaining litigation; (2) dealt with in an expeditious and cost-effective manner; and (3) whether the possibility of inconsistent findings by different courts can be avoided: Feltz Design Build Ltd. v. Larson, 2022 ONCA 150, para. 18.

. Truscott v. Co-Operators General Insurance Company

In Truscott v. Co-Operators General Insurance Company (Ont CA, 2023) the Court of Appeal considered the problematic issue of partial summary judgment:

[53] I accept the appellants’ submission that partial summary judgment was not appropriate in this case.

[54] The motion judge correctly articulated the following legal principles governing partial summary judgment motions, at paras. 42-43 of his reasons. Partial summary judgment is a rare procedure, 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: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34. Partial summary judgment should be granted only in the clearest of cases and only if doing so does not give rise to any of the associated risks of delay, expense, inefficiency, and inconsistent findings.

[55] However, in my view, the motion judge made an extricable error in principle in granting partial summary judgment: he failed to consider whether partial summary judgment was appropriate in the context of the litigation as a whole. The issues decided by the motion judge on the Motion cannot be readily bifurcated from those left for determination at trial. Because the issues are inextricably intertwined, deciding them on the Motion leads to the possibility of inconsistent findings and substantive injustice.

[56] The motion judge concluded that, as a result of having gone through the appraisal process, the appellants were barred from having other of their building and valuable papers loss claims considered. As I explain below in my analysis of Issue #2, he erred in law in that conclusion. The motion judge also concluded that the appellants had been paid all they were entitled to under the Policy for building loss and valuable papers loss. The difficulty with these conclusions is they rest on factual findings that are inextricably intertwined with the matters in the Claim that will proceed to trial, including claims relating to business interruption losses, bad faith, and punitive and aggravated damages.

[57] The appellants allege that Co-operators and Mr. Carroll manipulated the appraisal process and delayed payment of their loss claims in ways that amount to bad faith. To decide the appellants’ bad faith allegations, the trial judge will need to consider and make credibility findings on, among other things: the events surrounding the appellants’ claims for building and valuable papers losses; what happened in the lead up to the appraisals; the parties’ understandings of the intended scope of the appraisals that took place; the basis on which the appraisals were conducted; the appraisal procedures to be followed; what occurred during the appraisal processes; and, the timing and amounts of payments that were made. However, those determinations are inextricably intertwined with the motion judge’s factual findings that led him to conclude that the Awards finally settled the appellants’ claims and their entitlements under the Policy. Accordingly, partial summary judgment was not available.

[58] Further, in my view the motion judge erred when he stated, at para. 81 of his reasons, that credibility was not a critical issue in the matters before him. On the contrary, his factual findings were dependent on making credibility determinations. A single example will demonstrate this. At para. 23 of his reasons, the motion judge states the umpire “refused to consider the October 31, 2017 [valuable papers] proof of loss”. As I explain above, while that is Co‑operators/Mr. Carroll’s position, the appellants’ version as to why the umpire did not consider that valuable papers loss claim in the second appraisal is fundamentally different. The scope of the umpire’s jurisdiction in the second appraisal process is significant when deciding Award #2’s effect on the appellants’ right to have its other two valuable papers loss claims considered by Co-operators – a matter that could not be decided in the absence of credibility findings.

[59] In short, there is significant overlap on the facts relating to the issues for trial and those underlying the motion judge’s determinations. The factual findings must be left to the trial judge who, with the benefit of hearing all the trial testimony and further productions, will have a fuller appreciation of what transpired and the relationships among the parties, an appreciation that is crucial to fairly decide the allegations in the Claim.

[60] Moreover, the summary judgment process did not serve the objectives of proportionality, efficiency, and cost effectiveness. It was not cheaper, faster, or more efficient. Co-operators and Mr. Carroll brought the partial summary judgment motion on September 26, 2019. The record is voluminous. Cross-examinations of the affiants took place, as did cross-examination of witnesses under r. 39.02. The Motion was eventually argued on November 23, 2021, over two years after it was brought. There has been extensive delay and expense caused by the use of the partial summary judgment procedure.

[61] In my view, it is readily apparent that this was not one of those “clearest” of cases in which partial summary judgment was appropriate.

. Learmont Roofing Ltd. v. Learmont Construction Ltd.

In Learmont Roofing Ltd. v. Learmont Construction Ltd. (Ont CA, 2022) the Court of Appeal characterized partial summary judgment:

[19] Partial summary judgment is 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”: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 418 D.L.R. (4th) 657, at para. 34. The more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a partial summary judgment basis: Cook v. Joyce, 2017 ONCA 49, at para. 92.