Law Times

Page 10 March 6, 2017 • Law TiMes www.lawtimesnews.com In complex litigation, could be an uphill battle Cases highlight difficulties in partial summary judgment BY SHANNON KARI For Law Times T wo recent Ontario court decisions involving complex commercial litigation have outlined the difficulties a party may have in successfully obtaining a par- tial summary judgment in these types of cases. The Ontario Court of Ap- peal ruled in December in CIBC v. Deloitte & Touche that Superior Court Justice Paul Perell erred in granting partial summary judgment to the ac- counting firm on certain issues and risked duplication and in- consistent findings at trial. Meanwhile, in litigation stemming from a Florida-based Ponzi scheme, Ontario Supe- rior Court Justice Sean Dunphy granted partial summary judg- ment to TD Bank on certain issues because its motion was sufficiently narrow. In the rul- ing in TD Bank v. Lloyd's Un- derwriters, issued just days after the Court of Appeal decision in CIBC, the Superior Court judge also noted that it will normally be difficult for partial summary judgments to succeed in com- mercial litigation. Three years ago, in its deci- sion in Hryniak v. Mauldin, the Supreme Court of Canada spoke of the importance of find- ing new models of adjudication to improve access to justice. "To that end, I conclude that summary judgment rules must be interpreted broadly, favour- ing proportionality and fair access to the affordable, timely and just adjudication of claims," wrote Justice Andromache Karakatsanis on behalf of the court in the 2014 decision. The Supreme Court urged judges to be more willing to de- termine an action on summary judgment if there is no genuine issue requiring a trial. When it comes to more complex litiga- tion, though, seeking to dis- pose of even a portion of the outstanding issues by summary judgment may be an uphill bat- tle, say lawyers who practise in this area. Jeffrey Feiner, a partner at Corman Feiner LLP in Toron- to, says there is always a risk in seeking determination of part of an action. "For your client, if the poten- tial reward justifies the risk, it is a good procedural tool. You are going to have to be able to tell the court that you will be contributing to judicial economy" in hearing a partial summary judgment motion, says Feiner. "If there is a discrete and sev- erable issue, it is worth consid- ering," he adds. Despite the urging of the Su- preme Court to trial level judges to be more willing to use these tools, it may be difficult to over- come a natural hesitation to determine an action without a trial, suggests Gord McGuire, a partner at Adair Barristers LLP in Toronto. "I don't think Hryniak changes a judge's instincts," says McGuire. Those instincts are more naturally in favour of having a matter determined by trial than a summary judgment motion, he believes. "Hryniak does not factor into our analysis. It is where the claim or defence is sufficiently strong or whether or not it is un- duly complex," McGuire says, in deciding whether or not to seek summary judgment or partial summary judgment. The case before Perell related to the insolvency of Philips Ser- vices Corp. The Superior Court judge, in his December 2015 decision, granted partial summary judg- ment to Deloitte and dismissed a negligent misrepresentation claim brought by CIBC. The five-day summary judg- ment motion he heard would not be much different than a trial on this issue, over events that occurred nearly 20 years ago, noted Perell. As well, by the time of a sum- mary judgment motion, courts are entitled to assume that "the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial," he wrote. CIBC successfully appealed that finding and the Ontario Court of Appeal agreed that Perell erred in granting partial summary judgment on that is- sue. The decision, written by Jus- tice Alexandra Hoy, conceded that overturning the lower court FOCUS Gord McGuire says it may be difficult to overcome a natural hesitation to deter- mine an action without a trial, despite the urging of the Supreme Court to trial level judges to be more willing to use these tools. In my view, CIBC should certainly be viewed as an amber light if not a flashing red light to be considered before proceeding with any partial summary judgment motion. 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