The Canadian Bar Insurance Association
Employment & Labour

ONCA cautions against partial summary judgment

By Nicole Simes

As I noted in an earlier blog, the Supreme Court in this case, “rewrote the law on summary judgment” and opened the doors to a fast and cost-effective method of obtaining judgment for terminated employees. The courts since specifically recognized that straightforward wrongful dismissal cases are particularly well-suited for summary judgment.

However, in the past two years, the Ontario Court of Appeal has scaled back on this legal route.  

In 2016, the Court of Appeal, in this case, held that summary judgment was not often appropriate for claims brought under simplified procedure. Specifically, the court held that Rule 76.04(1) put “significant limitations” on an employer’s ability to prove its case. As I said in 2016, the case signaled to employment lawyers to think twice about proceeding with summary judgment, especially with claims initiated under simplified procedure.

The Court of Appeal’s approach continued in this recent decision.

In this case, the court overturned an award for partial summary judgment. The court repeated its words of caution from the 2016 case, holding that partial judgment can raise the following problems:

  1. Delay: Parties may use the process as a delay tactic, and even where a motion for partial summary judgment is brought in good faith it increases the time to reach a final decision.
  2. Expense: The motion, and related appeals, may be very expensive.
  3. Lost judicial resources: Judges are already spending significant time deciding summary judgment motions, and partial summary judgment does not even result in a final decision.
  4. Inconsistent findings: The record at trial would be more expansive than a partial judgment motion and could result in inconsistent findings between the partial summary judgment and trial.

Motions for summary judgment still provide an expeditious method of handling wrongful dismissal claims. However, the Court of Appeal decisions should give pause to parties in determining whether summary judgment is the best route to follow for their case.

If parties are keen on proceeding with summary judgment, first evaluate whether to bring the claim under the “regular” procedure instead of simplified procedure, if possible. Then, unless an element of the claim can be clearly bifurcated, avoid partial summary judgment.

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