​Earlier this month the Court of Appeal for Ontario released a decision allowing the appeal of a partial summary judgment motion. The action arises from a claim for solicitor's negligence as the result of a missed limitation period. The plaintiffs claim against their former lawyers for negligence and the lost opportunity relating to the dismissal of prior claims in negligence, misrepresentation, breach of contract, and breaches of the Arthur Wishart Act. The prior claims were dismissed on the basis of a missed limitation period which the lawyers conceded was two years. On an appeal of this decision, the lawyers attempted to argue for the first time that the applicable limitation period was in fact six years. They were unsuccessful in the appeal.

In the ongoing litigation the defendant lawyers moved for summary judgment asking that the entire action be dismissed. They later amended this position to seek partial summary judgment in respect of the common law and statutory misrepresentation claim, arguing that there was no genuine issue for trial relating to these claims because there had been no appeal of the findings related to these claims and therefore no lost opportunity. The motion for partial summary judgment proceeded and the motion judge determined that there had been no intention to appeal the dismissal of the misrepresentation claims. He therefore allowed the motion for partial summary judgment and dismissed the damages claim arising out of the common law and statutory misrepresentation claims.

The Court of Appeal allowed the appeal both on the grounds that the motion judge erred in this conclusion and that he erred in considering the advisability of an award of partial summary judgment. In discussing the second issue, the Court referred to the well-known Hryniak v. Mauldin decision, which does not address partial summary judgment except in the context of the enhanced fact-finding powers in Rule 20.04(2.1) and held that it may not be in the interests of judgment to grant partial summary judgment where this outcome risks duplicative proceedings or inconsistent facts.

This appeal is the third time the Court of Appeal has addressed partial summary judgment motions since the Hryniak decision. The previous two decisions, Baywood Homes Partnership v. Haditaghi and Canadian Imperial Bank of Commerce v. Deloitte & Touche, were both analyzed from the perspective of

(i) whether there was a risk of duplicative or inconsistent findings at trial and

(ii) whether granting partial summary judgment was advisable in the context of the litigation as a whole. The Court held in both instances that partial summary judgment was inadvisable in the circumstances.

The Court of Appeal reiterated its objections to partial summary judgment in this instance, including that such motions can cause delay of the main action, increase expenses, and lead to inconsistent findings. It further commented that such motions tie up judicial resources but do not result is the disposition of the action. The Court of Appeal held that the motion judge made an "extricable error in principle" in failing to consider whether partial summary judgment was appropriate in the context of the litigation as a whole.

Despite the enthusiasm in Hryniak for summary judgment as a tool to achieve proportionate, timely and affordable justice, the Court of Appeal provides important guidance to counsel considering partial summary judgment or summary judgment which may not address all issues in the litigation and concludes such motion ought to be "rare".