Author: Evan Ivkovic, J.D., Law Works P.C.
Editor: Ben Hanuka

In Butera v Chown, Cairns LLP, a decision released on October 13, 2017, the Ontario Court of Appeal overturned a motion judge’s decision that granted the law firm Chown, Cairns LLP partial summary judgment dismissing one aspect of a negligence claim, while leaving the other aspects of the negligence claim to proceed to trial.

The Court of Appeal reinstated the element that was earlier dismissed and ordered that it proceed to trial together with the other parts of the negligence claim against the defendant law firm.

Factual Background

Butera was the principal of a Mitsubishi Motors dealership.  When the dealership failed, he sued various Mitsubishi entities for breach of contract, misrepresentation, negligence, and breach of the Arthur Wishart Act.  He was represented by Chown, Cairns.

Mitsubishi successfully brought summary judgment to dismiss Butera’s claims on the ground that the limitation period had expired.  Butera unsuccessfully tried to appeal the dismissal of the action.

After his appeal failed, Butera sued Chown, Cairns for negligence, alleging that the firm failed to argue that a six-year limitation period applied, and that as a result, he lost the opportunity to argue the merits of his claims against Mitsubishi on the appeal.

The motion judge granted partial summary judgment dismissing the one part of the negligence claim that was based on a claim for misrepresentation against Mitsubishi.  The motion judge held that Butera did not appeal the original motion judge’s misrepresentation finding and thus was not entitled to claim lost opportunity damages based on Mitsubishi’s alleged misrepresentation.

The Court of Appeal’s Decision

According to the Court of Appeal, the motion judge erred in law by analyzing whether Butera appealed the reasons of the original motion judge’s decision.  The Court stated that appeals are from orders, not the reasons for a ruling.  By appealing the entire order of the original motion judge, by inference Butera was also appealing the dismissal of the misrepresentation claim.

The Court of Appeal outlined the ways in which partial summary judgment may be inconsistent with the access to justice policy goals that the Supreme Court set out in the seminal case of Hryniak. First, a partial summary judgment motion may be used as a tool to delay the main action, causing the other party to incur legal expenses to resolve a single aspect of the overall litigation.  Second, a partial summary judgment motion may be expensive in its own right.  Third, courts are already overburdened with the proliferation of summary judgment motions in the post-Hryniak era.  Lastly, the record at a partial summary judgment motion will not be as expansive as trial, creating a serious risk of inconsistent findings.

Applying these criteria to Butera’s appeal, the Court ruled that the part of the law firm’s alleged negligence about the dealership misrepresentation claim was intertwined with the dealership’s Arthur Wishart Act (Franchise Disclosure), 2000, negligence and breach of contract claims, which were proceeding to trial.  As a result, an award of partial summary judgment may lead to inconsistent rulings and would not serve the objectives of proportionality, efficiency and cost effectiveness.

In reversing the decision of the motion judge, the Court of Appeal held that the motion judge made an extricable error of law by failing to consider the appropriateness of partial summary judgment in the context of the litigation as a whole.  By setting aside the misrepresentation aspect of Butera’s lost opportunity claim against the law firm, the motion judge failed to consider that the misrepresentation part of the claim was factually and legally intertwined with the other parts of the claim which were proceeding to trial.

The Court held that the motion judge risked making inconsistent findings, and did not adjudicate in a way that would lead to the most cost-effective resolution of the dispute.  The Court emphasized that partial summary judgment should only be used in the rare circumstance that the motion may be readily bifurcated from the rest of the litigation.


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