Test for Scheduling Motions for Partial Summary Judgment
In Malik v. Attia, 2020 ONCA 787, the Court of Appeal provided directions on the factors to consider when determining whether a motion for partial summary judgment should proceed.
The Court of Appeal indicated that the risk of inconsistent findings is only one factor. The court must determine whether partial summary judgment will achieve the objectives of proportionate, timely, and affordable justice or, instead, cause delay and increase expense.
The Court of Appeal stated that, when faced with a request to hear a motion for partial summary judgment, the court should make three simple requests of counsel or the parties:
- Demonstrate that dividing the determination of the case into several parts will prove cheaper for the parties
- Show how partial summary judgment will get the parties’ case in and out of the court system more quickly
- Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case
In jurisdictions where there is motion scheduling court or a motion triage system, these issues should be canvassed before the motion is scheduled or before the motion is heard.