“Boomerang” and Partial Summary Judgment Motions

Summary judgment motions are a powerful tool in a litigator’s arsenal that in appropriate cases can help shorten the length of civil actions and avoid the forensic machinery of a trial. In  Hryniak v. Mauldin,¹ the Supreme Court of Canada called for a “cultural shift” in litigation that gave way to accessible, timely, and affordable justice through the use of summary judgment motions as a way to dismiss or allow actions that could be resolved in the context of a “mini-trial”.²

Since Hryniak, there has been a growing trend of appellate cases that have discussed the benefits, shortcomings, and novel uses of summary judgment motions, which are touched upon in this blog.³ More specifically, this blog seeks to explore and review “boomerang” and “partial” summary judgment motions, as well as to provide a brief overview on summary judgment motions in general.

I. Summary Judgment Motions: General Principles

A. The Test

Either a plaintiff or a defendant may move for summary judgment on all or part of a claim or defence.⁴  Rule 20.04(2) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”.⁵ Summary judgment is appropriate if the court is able to reach a fair and just determination of the action on the merits.⁶

In Hryniak, the Supreme Court of Canada held that summary judgment is appropriate if the process:

1. allows the judge to make the necessary findings of fact;
2. allows the judge to apply the law to the facts; and,
3. is a proportionate, more expeditious and less expensive means to achieve a just result.

The standard for fairness to be applied when determining whether the summary judgment process is appropriate in the circumstances is not whether the procedure is as exhaustive as trial, but whether it gives the judge confidence that he or she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.⁷

B. Summary Judgment on Consent

Although most summary judgment motions are brought on the basis that the underlying dispute is apposite for summary judgment due to a lack of genuine issue requiring a trial, subrule 20.04(2) creates two paths to a summary judgment motion. More specifically, 20.04(2) provides that the court shall grant summary judgment if either:

1. the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
2. the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

In Unique Lighting & Control Corp v. Green Services Canada Ltd.,⁸ the parties both agreed that a portion of the claim was suitable for summary judgment and sought to rely upon subrule 20.04(2)(b). At the time of the hearing, no court had resolved whether the difference in wording between subrules 20.04(2)(a) and 20.04(2)(b) would result in differing standards.⁹ Consequently, the court was tasked with considering whether the test for summary judgment is identical for both 20.04(2)(a) and 20.04(2)(b) or whether a differing standard should apply.

The court observed that although the two paragraphs of subrule 20.04(2) use different language in describing the standard for summary judgment, they are best understood when read together.¹⁰ Accordingly, regardless of the agreement of the parties, paragraph (b) allows a court to decline summary judgment if the court is not satisfied “that it is appropriate”.¹¹ Put another way, if there remains a genuine issue for trial, summary judgment can never be “appropriate”.

Unique Lighting confirms that even though subrule 20.04(2)(b) provides an alternative route to summary judgment, it does not utilize a different standard and does not enable the parties to compel summary judgment “where there is a genuine issue that the interests of justice require the full procedural machinery of a trial to resolve”.¹²

C. Evidence on a Summary Judgment Motion

In the context of a summary judgment motion, the courts are to assume that the parties have put their best foot forward and placed before it, in some form, all of the evidence that will be available for trial.¹³

An affidavit may be made on the affiant’s “information and belief”, but the court may draw an adverse inference from the failure of a party to provide the evidence of a person with personal knowledge of contested facts.¹⁴

In Drummond v. Cadillac Fairview Corporation Limited,¹⁵ the Court of Appeal for Ontario reiterated that caution must be exercised in respect of information and belief evidence on contested facts.¹⁶ If the evidence on information and belief in an affidavit goes to a fundamental contested aspect of the summary judgment motion, the motion judge will first determine whether the evidence would be admissible at trial. If the evidence would be admissible at trial, it is admissible on the motion. However, if it would not be admissible at trial, the onus is on the party proffering the evidence to justify an expansion of the rules governing admissibility in the context of the motion.¹⁷

It should be noted that although the moving party bears the onus to satisfy the court that the evidence put forward demonstrates that there is no genuine issue requiring a trial, a responding party is unable to rest on bald allegations to defeat a summary judgment motion.¹⁸ More specifically, it is not sufficient for a responding party to simply rely on unsupported allegations, unsupportable inferences, or assert uncorroborated facts by way of affidavit.¹⁹ Similarly, a responding party is not entitled to sit back and rely on the possibility that more favourable facts might develop in the proceeding, nor can they take the position that the moving party’s case requires a trial because more evidence, or better evidence, might then be led.²⁰ Rather, the responding party on a motion for summary judgment “must lead trump or risk losing”.²¹

II. Boomerang Summary Judgment Motions

A “boomerang” summary judgment refers to a situation in which summary judgment is sought by the moving party, but granted in favour of the non-moving party, even though the non-moving party has not requested summary judgment in a cross-motion.²²

Historically, courts have taken the lenient view that it is entirely open to a motion judge to grant a boomerang summary judgment.²³ This view is in part based on the idea that on a motion for summary judgment, it is believed that parties have put their best foot forward and put all of the relevant evidence before the court so that it may render a decision.

However, in Drummond v. Cadillac Fairview Corporation Limited, the Court of Appeal for Ontario reined in the courts’ leniency in granting boomerang summary judgments due to concerns about procedural fairness. The court noted that summary judgment motions are  “designed to do more than make efficient use of court resources. They are intended to achieve fair and just results”.²⁴  With respect to whether it would be “fair and just” to allow a boomerang judgment the Court concluded that allowing such a judgment would conflict with procedural fairness due to, inter alia, the following factors:

• the motion judge failed to put the appellant on notice of the possibility of boomerang summary judgment and failed to give the appellant an opportunity to address that litigation risk;
• the respondent’s main position before the motion judge was that the case was inappropriate for summary judgment; and,
• the respondent had argued that a trial was necessary partly because further evidence was required from additional witnesses.²⁵

In light of the procedural fairness concerns raised in Drummond, it would be prudent for non-moving parties seeking summary judgment to formally bring a cross-motion as opposed to relying on the availability of a boomerang summary judgment.

III. Partial Summary Judgment Motions

Motions for partial summary judgment – that is, a motion where summary judgment would not dispose of the proceeding in its entirety, have been the subject of much appellate scrutiny and as a result are rarely granted.

In Butera v. Chown, Cairns LLP,²⁶ the Court of Appeal for Ontario made it clear that motions for partial summary should 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.²⁷

The Court further noted that a moving party considering bringing a partial summary judgment motion should consider four factors in assessing whether such a motion is advisable in the context of the litigation as a whole. The factors are as follows:

• Such motions cause the resolution of the main action to be delayed. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay;
• A motion for partial summary judgment may be very expensive;
• Judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action; and,
• The record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.

The Court of Appeal for Ontario had an opportunity to echo these cautions in its 2018 decision of Mason v. Perras Mongenais.²⁸ In Mason, the summary judgment motion was brought by one defendant and would have resulted in the dismissal of the case against it. The motion judge granted the motion and had referred to the “culture shift” mandated by Hryniak as a basis for doing so.

On appeal, the Court commented on the interplay between the “culture shift” and partial summary judgment motions and stated:

[T]he culture shift referenced in Hryniak is not as dramatic or as radical as the motion judge would have it. The shift recommended by Hryniak was away from the very restrictive use of summary judgment, that had developed, to a more expansive application of the summary judgment procedure. However, nothing in Hryniak detracts from the overriding principle that summary judgment is only appropriate where it leads to “a fair process and just adjudication”. Certainly there is nothing in Hryniak that suggests that trials are now to be viewed as the resolution option of last resort. Put simply, summary judgment remains the exception, not the rule.²⁹

Ultimately, the Court overturned the motion judge’s decision granting partial summary judgment.³⁰

In 2020, the Court of Appeal for Ontario provided further guidance – and arguably established a higher threshold – as to when motions for partial summary judgment are appropriate. In Malik v. Attia,³¹ the Court provided directions on the factors to consider when determining whether a motion for partial summary judgment should proceed.

The Court indicated that the risk of inconsistent findings is only one of several factors that a motion judge must consider when asked to entertain a partial summary judgment motion.³² The Court went on to note that the courts must also determine whether partial summary judgment will achieve the objectives of proportionate, timely, and affordable justice or, instead, cause delay and increase expense.

The Court then stated that, when faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties:

1. Demonstrate that dividing the determination of the case into several parts will prove cheaper for the parties;
2. Show how partial summary judgment will get the parties’ case in and out of the court system more quickly; and,
3. Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.³³

After setting out the above test, the Court went on in the next paragraph to discuss that the above test should be addressed by “the motion case management or triage systems”.³⁴ In light of these comments, anyone appearing at Civil Practice Court (or a case management judge outside of Toronto) should be prepared to convince the judge that the above considerations are met at the scheduling stage of the motion.³⁵

IV. Conclusion

Partial summary judgment still exists in Ontario, albeit in very rare cases. Counsel who are contemplating bringing a partial summary judgment must now be prepared to make submissions on the three factors outlined in Malik to demonstrate why partial judgment would be beneficial and ought to proceed.

With respect to boomerang summary judgment motions, counsel would be wise to formally bring a cross-motion and avoid the potential of running afoul of procedural fairness considerations if the respondent also seeks judgment.