New Requirements for Bringing a Motion for Partial Summary Judgment

Recently, the Ontario Court of Appeal (“ONCA”) unanimously upheld the Ontario Superior Court of Justice’s decision in Malik v Attia, 2020 ONCA 787 (“Malik v Attia”). In doing so, the Appellate court provided guidance on the appropriate use of partial summary judgments, outlining a list of requirements that should be satisfied prior to seeking this motion.

In Malik v Attia, a Seller listed two neighbouring properties to be sold together. Subsequently, two Buyers entered into an agreement with the Seller for the purchase and sale of each of the properties but were unable to secure firm mortgage financing. Consequently, the Seller commenced an action against the Buyers for breach of contract and for the forfeiture of the deposit. Two years later, the Seller moved for a summary judgment on her claim.

At the initial summary hearing, the motion judge determined that there was no genuine issue regarding the breach that would warrant a trial. The breach of contract, indisputably, occurred when the Buyers were unable to close on the transaction. As such, the motion judge, concluded that this case was one of the exceptional circumstances where a partial summary judgment would be an appropriate remedy. Subsequently, the motion judge bifurcated this action and directed the remaining issues of damages and the forfeiture of the deposit for trial.

The Buyers’ appealed.

The ONCA strongly disagreed with the decision to seek, and hear, this motion for a partial summary judgment. The Court stated this process had increased the cost and further delayed the final resolution of this matter, contrary to the objectives of summary judgments.

However, the Appellate court did not set aside the decision. ONCA determined that while this partial summary judgment was a costly and timely endeavour, it was not grounds for judicial interference.

For summary judgments to truly be a “faster and cheaper” way to access the civil court system, the Court of Appeal concluded that there needed to be a system in place to triage. That way, the adjudicator would be able to determine a case on its merits once and for all instead of a myriad of partial decisions.

To assist with this, ONCA provided the following criteria for motion judges to consider when determining whether a motion for partial summary judgment is appropriate:

1. Demonstrate that dividing the determination of this 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;

• Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

This case cautions counsel seeking a partial summary judgment to (re)consider whether it is the appropriate avenue for achieving proportionate, timely and affordable justice for their client. As such, this decision is likely to result in fewer motions for partial summary judgment being brought and even less heard.