It is commonplace for defendants in multi-party disputes to have a desire to end the litigation against them (but not all the parties) before trial, especially if they feel that the issues between them and the others are separate and distinct. One of the defendants, for example, may have an excellent discrete defence that the others do not, and may wish to bring a motion to extricate themselves from the lawsuit (and any pending lengthy trial). These types of motions are called partial summary judgment motions because they don’t end the entire litigation – the resolution is only partial (removes one party or one discrete issue).
But the courts have made it clear that a “motion for partial summary judgment is a rare process that should be reserved for issues that may be readily bifurcated from those in the main action.”
The court must be satisfied that the partial summary judgment motion raises discrete issues that will not surface again at the pending trial with the remaining parties. If there is overlap, then the partial summary judgment motion ought to be denied. The over-arching concern is that if there are overlapping legal and factual issues then there could be significant problems if the motions judge arrives at conclusion on the motion that are different than the conclusions reached at trial after all the evidence is heard. Inconsistent findings and conclusions must be avoided, and the only way to achieve that is by denying the partial summary judgment motion and having all the facts and issues decided at the full trial.
In this recent case, that is exactly what occurred. The partial summary judgment motion was denied because the court was not satisfied that the issues in the motion could be bifurcated (cleanly separated) from the issues in the main action. The court also had a concern that the partial summary judgment motion was brought too late (only a few months before the pending trial even though the discoveries were completed years prior), such that any anticipated efficiencies in asking the court to rule on a summary judgment motion was lost, especially when the trial was expected to be only a few days anyway. The court put it this way:
“…. proceeding with a motion for summary judgment after more than six years of litigation is not a more expeditious or less expensive process when the trial is of short duration and when the facts and issues are intertwined. Moreover, as indicated above, this is a partial motion for summary judgment, and, irrespective of the outcome, a five-day trial will nonetheless be required for the remaining defendants, with the defendant … (who is seeking to be released through the summary judgment motion)… likely required, in any event, to testify at the trial given his involvement with the remaining defendants.
The motion for summary judgment … would therefore not achieve the desired objective of a proportionate, cost-effective and timely dispute resolution.”
The take-away for a defendant trying to extract themselves from a multi-party claim is:
- Ensure that your position is not intertwined with the remaining defendants. For example: you have a discrete defence that is strong, the answer of which only relates to you, and has no implication on the remaining defendants (ie: it won’t be something that the trial judge will have to answer if you are out of the action);
- Try your best to bring the motion as soon as possible, ideally shortly after the oral and documentary discoveries are completed. Waiting longer simply raises the risk that the court may deny the motion. There is likely an inverse relationship between the anticipated length of the trial and the lead time required for the partial summary judgment motion. The longer the trial, the more likely a court will entertain the motion even if the trial date is looming because saving a party from a multi-week or multi-month trial is very substantive, but the shorter the trial, the more apt a court will see fit to deny the motion on the basis that there are no real efficiencies to gain, as was the opinion of the judge in this recent case.
Canadian Union of Postal Workers v. Quebecor Media Inc. et al, 2022 ONSC 3749
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc3749/2022onsc3749.html