A recent court decision serves as a warning to think hard about bringing a summary judgment motion in multi-party litigation, if the motion will only partly dispose of a claim.
In Farooqi v. Lorenzo, a defendant driver sought to be dismissed from an action by way of summary judgment. The plaintiffs, a co-defendant, and a third party consented to the dismissal. However, one set of defendants did not consent.
Justice D.A. Wilson refused to schedule a summary judgment motion. She noted that the Court of Appeal has held that a motion for partial summary judgment should be considered a rare procedure.
Referring to the Supreme Court’s decision in Hryniak v. Mauldin, Justice Wilson stated that a dismissal as against one defendant with the action proceeding against other defendants risks creating duplicative proceedings or inconsistent findings of fact.
The refusal to schedule the summary judgment motion is surprising. In Hryniak, the Supreme Court stated: “the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach”.