Law Times

March 6, 2017

The premier weekly newspaper for the legal profession in Ontario

Issue link: https://digital.lawtimesnews.com/i/794376

Contents of this Issue

Navigation

Page 11 of 15

Page 12 March 6, 2017 • Law TiMes www.lawtimesnews.com ruling would use up scarce judi- cial resources and require the issue to be adjudicated again be- fore a trial judge. However, the Court of Ap- peal said it disagreed with the analysis of Perell on the negli- gent misrepresentation claim. "There is a real risk of dupli- cative or inconsistent findings at trial. "This error taints the motion judge's conclusion that partial summary judgment was advis- able in the context of the litiga- tion as a whole," wrote Hoy. "This appeal illustrates a potential danger when a party brings a motion for partial sum- mary judgment," she stated, with Justices Mary Lou Benotto and Grant Huscroft concurring. While it may often be diffi- cult or not the best strategy for a client to seek partial summary judgment, with the appropriate facts, it can be successful, says Feiner, pointing to the decision by Dunphy in TD Bank. In that case, the bank was seeking partial summary judg- ment on three "test cases" as part of the interpretation of an insurance policy. TD was sued following a Ponzi scheme orchestrated by a Florida customer of the bank. It was a defendant in 19 sepa- rate lawsuits stemming from the Ponzi scheme. After one proceeded to trial, the bank lost and then settled the other actions. The motion before Dunphy was whether the bank's losses were "direct financial losses" under the insurance policy. As well, the bank was not asking the court to determine other issues related to the insur- ance coverage. "I have decided that this case is an appropriate one for partial summary judgment because of and not despite its narrow scope," wrote Dunphy in his ruling. "The question raised has sig- nificant potential to narrow the issues for trial materially," he added. The judge concluded that there was no material risk of duplication or conf licting judg- ments in the litigation. At the same time, in refer- ence to the Court of Appeal ruling in CIBC issued earlier that month, the Superior Court judge suggested that caution is required whenever considering a partial summary judgment motion. "In my view, CIBC should certainly be viewed as an amber light if not a f lashing red light to be considered before proceeding with any partial summary judg- ment motion," wrote Dunphy. Judges must first carefully consider the adequacy of the record before the court and whether such a motion will pro- mote the objects of efficiency and proportionality, he added, echoing the words of the Su- preme Court in Hryniak. Another consideration in bringing a partial summary judgment motion, says Feiner, is that it is hard to predict if there might be duplication at a later stage. As well, "if you bring a mo- tion to try to narrow the issues, you risk assessment, but with the added complication of not disposing of the entirety of the claim," says Feiner. Despite the potential hurdles, the recognition by the Supreme Court that this is a legitimate tool for a litigator depending on the facts of the case is a welcome development, says McGuire. "You used to be met with resistance when you wanted to schedule such a motion," he notes. While there are still barriers, he says there is at least less resis- tance to getting these types of motions before a court. LT FOCUS Continued from page 10 Adjudication in complex commercial litigation scrutinized Jeffrey Feiner says there is always a risk in seeking determination of part of an action. This is more than a phone book. With Canadian Law List 2017 you have access to: • an up-to-date alphabetical listing of more than 80,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges across Canada • all contact information supplied for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown Corporations • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid and other important law-related offices THE LATEST CONTACT INFORMATION IN A USER-FRIENDLY FORMAT THAT IS BEYOND TRADITIONAL LISTINGS Continually updated by a dedicated team of professionals, Canadian Law List includes value added features such as: • last name first identification in the federal and provincial listings • separate section of corporate law departments for more than 1,250 companies • professional cards of prominent Canadian law firms • International Agency Referral Cards AREAS OF PRACTICE AND ENHANCED LISTING INDEX The enhanced listing index is displayed in bold type with detailed practice information. It also: • lists firms and lawyers that have expanded their practice information in their provincial listing • is organized by areas of practice by province, city and page reference in their provincial listings ORDER YOUR COPY TODAY! Call 1.800.387.5164 or visit www.carswell.com for a 30-day no-risk evaluation YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Hardbound • Published February each year • L7798-5933 • On subscription $174* • One time purchase $194* Multiple copy discounts available * Plus shipping/handling and applicable taxes Untitled-3 1 2017-02-28 4:02 PM www.twitter.com/lawtimes Follow on There is a real risk of duplicative or inconsistent findings at trial. This error taints the motion judge's conclusion that partial summary judgment was advisable in the context of the litigation as a whole. Alexandra Hoy

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - March 6, 2017