Thursday, April 1, 2010

Partial summary judgment

D.G. Sports Inc. v. WWK Sportsdome Inc., 2010 ONCA 234, released today, deals with partial summary judgment. Although dealt with nearly a decade ago in Ford Motor Co. of Canada Ltd. v. Ontario Municipal Employees Retirement Board (1997), 36 O.R. (3d) 384 (C.A.) the issue still causes concern. With today's decision, however, there is little doubt that summary judgment properly flows where a discrete item can be ruled on regardless of whether or not that eliminates the need for a trial of the remaining issues. The Court holds:

Partial summary judgment and severability

[33]         The appellants contend that the motion judge erred in granting partial summary judgment in circumstances where the issue before him was not severable from the remaining liability issues in the main action and counterclaim, both of which must go to trial.

[34]         The issue determined by the motion judge was that the "Air-Supported Structure" was not completed by September 30, 2007, as required by the lease and, therefore, the respondents were entitled to terminate the lease pursuant to s. 3(a)(ii)(A).  The appellants submit that this is the crucial, albeit not the only, issue in both the respondents' action and the appellants' counterclaim and that its resolution on a motion for summary judgment improperly precludes consideration of the issue at trial.

[35]         Specifically, the appellants say that the balance of the respondents' claim for lost profits under the lease will require the trial court to determine whether WWK breached the lease.  Similarly, the liability determination on WWK's counterclaim against the respondents will require a determination of whether it was the respondents who breached the lease.  Given that this will require the trial court to determine whether the "Air-Supported Structure" was completed by September 30, 2007, the appellants argue that the motion judge improperly severed these issues by resolving them on the motion for summary judgment.

[36]         I do not accept this submission.  Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, specifically authorizes partial summary judgment:

20.01(1) A plaintiff may … move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.                                                                                                             [Emphasis added.]

[37]         In Ford Motor Co. of Canada Ltd. v. Ontario Municipal Employees Retirement Board (1997), 36 O.R. (3d) 384 (C.A.), Osborne J.A. identified three categories of cases in which a motion for partial summary judgment is appropriate.  He described the first category in this fashion at pp. 394-95:

The cases in which summary judgment has been granted for "part of" a claim seem to me to fall into three groups:

(a) actions where the evidence establishes that there is no genuine issue for trial in respect of a discrete claim.  These partial summary judgment cases require no further comment except to say the result of summary judgment for "part of" a claim is consistent with the purpose of Rule 20; the partial summary judgment removes a discrete issue from the issues to be tried and thus shortens the trial.  This is consistent with "procedural justice" concerns referred to by Morden A.C.J.O. in Irving Ungerman and with the purpose of Rule 20 as referred to in Jockey Club... .

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777


Anonymous said...

Wow, that's what I was exploring for, what a information! present here at this web site, thanks admin of this web site.

Feel free to visit my homepage ... Distinction between the two Gynecomastia and Pseudogynecomastia

Anonymous said...

Wacker, dieser ausgezeichnete Gedanke fällt gerade übrigens
taiyanami bb4arg48

Anonymous said...

cheap Celine handbags for Women
Howdy! This article could not be written any
better! Reading through this post reminds me of my previous
roommate! He always kept talking about this. I'll send this information to him.
Pretty sure he's going to have a good read.

Thanks for sharing!

Anonymous said...

There's definately a great deal to find out about this topic.
I like all the points you made.

Also visit my site skin care products

Anonymous said...

This design is incredible! You certainly know how to keep a reader amused.
Between your wit and your videos, I was almost moved to start my own blog (well, almost...HaHa!) Fantastic job.

I really loved what you had to say, and more than that,
how you presented it. Too cool!

My blog football heroes hack

yanmaneee said...

kyrie 6
kawhi leonard shoes
kd 10
jordan shoes
off white
a bathing ape
stone island
yeezy shoes
kd shoes

Michaelseo said...

I'm glad to see the great detail here!. vape attic olathe

slethuth said...

replica bags online shopping india replica bags in delhi replica bags korea

pytho said...

high quality replica handbags EIPX best replica bags online FMQW luxury replica bags BFPU

mcshesea said...

redirected here high end replica bags hop over to here click here to investigate more information find more