Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20241113 DOCKET: COA-24-CV-0271
Huscroft, Harvison Young and Copeland JJ.A.
BETWEEN
Anjanette Passmore Plaintiff (Appellant)
and
City of Hamilton, the Hamilton Street Railway and Michael Plunkett Defendants (Respondent*)
Counsel: Jordan Katz and Elio D’Alessio, for the appellant Caroline P. Gronke and Carolina Albuquerque, for the respondent
Heard: October 4, 2024
On appeal from the order of Justice Gerald E. Taylor of the Superior Court of Justice, dated February 20, 2024.
Reasons for Decision
[1] The appellant, Anjanette Passmore, appeals from a judgment granting summary judgment in favour of the respondent, the City of Hamilton (the “City”). For the following reasons, the appeal is allowed and the matter remitted to the Superior Court of Justice so that it can proceed to trial.
Background Facts
[2] Ms. Passmore was a passenger on a Hamilton Street Railway (“HSR”) bus in July 2020. The driver was Michael Plunkett. Ms. Passmore alleges that Mr. Plunkett suddenly slammed on the brakes, causing her to fall from her seat and injuring her.
[3] Ms. Passmore commenced an action alleging that Mr. Plunkett, the City, and HSR are responsible for her injuries. The defendants filed a joint defence and, at the same time, also filed a jury notice.
[4] The parties appeared before Sheard J. in July 2023 for a pre-trial conference. During the conference, the defendants indicated for the first time that the City was improperly named as a defendant. Sheard J. directed that the City was to bring a motion to dismiss the claim against it and, if it did not do so within 60 days or if it was unsuccessful on its motion, Ms. Passmore could bring a motion to strike out the jury notice. [1]
[5] The defendants brought the motion for summary judgment according to Sheard J.’s direction. The motion judge allowed the motion, dismissing Ms. Passmore’s claim against the City. His reasons state that:
Although this motion is framed as a motion for summary judgment, it is really a motion to determine if this case will be decided by a jury or a judge alone.
[6] In his view, there was no possibility that Ms. Passmore could obtain a judgment against the defendant driver but not the defendant HSR. Furthermore, he determined that while “the plaintiff submit[ted] that there are valid arguments to support a finding of liability against the city, such arguments are of academic interest only.”
Analysis
[7] While the motion judge’s reasons refer to the fact that this was a Rule 20 motion for summary judgment, there is no reference to the fact that, in moving for the removal of one defendant, the motion was only for partial summary judgment. Nor does he refer to the particular considerations and established case law applicable to such motions. These considerations reflect the well-established principle that partial summary judgment is only appropriate in rare circumstances.
[8] In Malik v Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215, at para. 62, the court set out three considerations that support granting partial summary judgment:
- The determination of the case in several parts will prove cheaper for the parties;
- Partial summary judgment will get the parties’ case in and out of the court system more quickly; and
- Partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.
[9] On appeal, counsel for the respondent made two principal submissions. First, she submitted that the motion judge did refer to the fact that the motion was made under Rule 20 and that the motion judge properly determined that there was no “genuine issue requiring a trial” as required by the test in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. This argument fails because there is no discussion of the appropriateness of partial summary judgment. None of the considerations outlined in Malik are addressed.
[10] Second, she submitted that the motion judge did conclude that there would be no prejudice to the plaintiff if the motion were granted, and that his decision was appropriate as it would focus the issues for trial and be less expensive. There is no merit to this submission because of the absence of any consideration of the appropriateness of partial summary judgment. Furthermore, counsel cannot fill the void with their own analysis of the Malik considerations on appeal.
[11] This is not one of those rare cases in which an order for partial summary judgment was appropriate. As the motion judge himself acknowledged, granting the motion would not have resulted in any efficiencies of time or expense because the City did not raise the issue until the pre-trial conference. At the time of the pre-trial conference before Sheard J. in July 2023, the matter was set down for trial and scheduled to proceed in November 2023. The City’s motion was scheduled only after (and as a result of) the pre-trial, and was heard only in February 2024, approximately three months after the trial was supposed to take place.
[12] The motion required full briefing, cross-examination, and argument that could equally have been made at trial. Given the appellant’s allegations of joint liability against HSR and the City, the trial will require adjudication of the same issues on the same evidence. Partial summary judgment was not appropriate in these circumstances.
Disposition and Costs
[13] The appeal is allowed. The respondent City shall pay costs of the appeal to the plaintiff in the amount of $10,000 all inclusive, and costs below in the amount of $8,750, for a total of $18,750.
“Grant Huscroft J.A.”
“A. Harvison Young J.A.”
“J. Copeland J.A.”
[1] Pursuant to s. 108(2)(xii) of the Courts of Justice Act, R.S.O. 1990, c. C.43, if the City remains a party to the action, the matter must be tried without a jury.
