Court File and Parties

Court File No.: CV-23-496-00 Date: 2025-10-24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ELRUS Aggregate Systems Ltd. S. Black, for the Plaintiff

Plaintiff

- and -

Impala Canada Ltd. A. Payne and M. Cooper, for the Defendant

Defendant

HEARD: October 17, 2025, at Thunder Bay, Ontario

Mr. Justice S.J. Wojciechowski

Case Management Decision

[1] Introduction

This matter comes to me as a case conference designed to triage the partial summary judgment motion of the plaintiff, ELRUS Aggregate Systems Ltd. ("ELRUS"), in accordance with the decision in Malik v. Attia, 2020 ONCA 787 ("Malik").

[2] The Malik Framework

In Malik at para. 61, Justice Brown references the decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, as promoting summary judgment as a procedural tool which, when properly used, provides litigants with timely and affordable access to justice. He then indicates that when faced with a partial summary judgment motion, a motion judge must first determine whether partial summary judgment "will achieve the objectives of proportionate, timely, and affordable justice or, instead, cause delay and increase expense."

In considering whether to proceed to hear a motion for partial summary judgment, Justice Brown indicates at para. 62 that three issues should be considered before the motion is allowed to proceed:

(i) Demonstrate that dividing the determination of the case into several parts will prove cheaper for the parties;

(ii) Show how partial summary judgment will get the parties' case in and out of the court system more quickly; and

(iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

Counsel before me during this case conference addressed those three issues within the context of the pending motion for partial summary judgment which has been filed by ELRUS against the defendant, Impala Canada Ltd. ("Impala").

Partial Summary Judgment Motion

[5] Background

Before reviewing the position of the parties, let me briefly summarize my understanding of the background to the motion which ELRUS wishes to have adjudicated.

On February 13, 2021, ELRUS entered a contract with Impala ("the Contract") for the design, manufacture and supply of decoupling circuit aggregates processing equipment ("the Equipment"). The purpose of the Equipment was to receive mined material which would be crushed and separated into aggregate for processing by Impala.

The original Contract price was in excess of $19 million. Performance and payment was to be completed within four stages, three of which were completed. The final stage, being the "Commissioning stage", involved the conclusion of assembly, installation, electrification and plant set up and verification of various performance benchmarks, at which time the final 10% of the Contract price would be payable.

ELRUS submitted an invoice to Impala for $2,699,457.89 on March 29, 2023, on the basis that the Commissioning stage had been completed. This invoice has not been paid, and a Statement of Claim commenced by ELRUS was issued on December 20, 2023, seeking payment of this invoice and other claims totalling more than $5.7 million.

Impala denies that the Commissioning stage was achieved, taking the position that the Equipment did not function as was contemplated by the terms of the Contract. In its responding pleading, Impala advances a counterclaim in an amount exceeding $23.7 million alleging negligence and breach of contract.

Cost Effectiveness

The first issue to address in advancing a partial summary judgment motion is whether doing so will be more cost effective. Generally, running two separate hearings – a partial summary judgment motion which leaves the remaining issues to be addressed within a trial proceeding – would be less efficient and cause the parties to incur legal costs exceeding the costs of only having a trial. However, if the issue raised in the partial summary judgment motion is distinct from other issues to be resolved at trial, and the evidentiary basis underlying the motion is different than required at the trial, it is possible that dealing with the issues in two separate proceeding would be economical.

Counsel for ELRUS submitted that the issue of whether the Commissioning stage was reached is a simple matter of contract interpretation. If ELRUS achieved this stage as defined by the Contract, then the invoice submitted is due and payable by Impala. The issues regarding any counterclaims could be addressed at a later date, since those arise from facts beyond the simple interpretation of the Contract language and what was achieved.

In addition, if the concerns of Impala were based upon the evaluation of its counterclaim and whether any net monies will ultimately be owed to ELRUS, then the court could order any monies determined owing pursuant to the completion of the Commissioning stage be paid into court and held pending the resolution of the counterclaim.

This approach is advocated by ELRUS on account of media reports which suggest that Impala is about to close its Canadian operations. If the accounts of the South African corporation are true and there are plans to relocate from the Canadian market, failing to promptly decide the Commissioning stage issue would effectively bar ELRUS from any recovery. As such, proceeding with this "discrete" issue would determine whether the last invoice was due and payable, and in a timely matter so as to not lose its ability to collect these monies.

Counsel for Impala submits that proceeding with a partial summary judgment motion would be a mess. At this time, no discoveries have been undertaken, and in order to establish the factual matrix to determine whether the Commissioning stage had been met will require expert evidence on the standard of care and the standard of design. Any motion process would necessarily involve significant documentary production as well as cross examinations. Undertaking those steps, and then participating in discoveries to address the remaining counterclaim issues within a trial process, would not be cost effective.

Timeliness

The second factor is whether the partial summary judgment route would result in the parties' case getting in and out of court more quickly.

ELRUS submits that the partial summary judgment motion has been scheduled for November 18, 2025, which is better timing than would be available to conduct a trial in this matter. This consideration also involves the position of ELRUS that any shut down of Impala's operations in the near future will have a significant impact upon the ability of ELRUS to collect on a partial summary judgment determination in its favour.

Impala points out that this litigation has been on the books for approximately 20 months, since December 2023, and that if ELRUS wanted the matter to proceed in a more timely manner, ELRUS should have advanced the litigation instead of seeking partial summary judgment.

Inconsistent Findings

The issue here is whether a determination by the judge hearing the partial summary judgment motion might make findings which are inconsistent with the trial judge decision on the remaining issues.

ELRUS submits that the interpretation of the Contract and whether the Commissioning stage was completed, thus triggering an obligation on Impala to pay the final invoice, is a focussed exercise on a discreet issue. A motions court judge will be asked to determine if performance benchmarks were met, and if other terms of the Contract were completed, to trigger a payment obligation on the part of Impala. Whether or not Impala's counterclaim is successful will involve other factual considerations which fall outside the Commissioning stage determination.

In this regard, ELRUS relies, in part, on the fact that a statement released by Impala in an Annual Integrated Report admitted that "the plant decoupling project was commissioned". In addition, a collective agreement which is currently in effect describes a pay scale for employees in positions involved in the operation of the Equipment. Both these facts are asserted by ELRUS to support its position that the Commissioning stage was successfully completed, which again does not involve any consideration of the counterclaim issues raised by Impala.

Impala focusses its submissions on the result which is defined by the pleadings, namely that any entitlement of ELRUS is dependent upon the extent to which Impala's counterclaim succeeds.

If an entitlement is determined in favour of ELRUS for completing the Commissioning stage, but the costs associated with addressing deficiencies and repairs, if substantiated, are larger than the Commissioning stage payment, ELRUS might owe Impala money instead of the other way around. Determining the claim of ELRUS in a vacuum without considering the impact of Impala's claim could result in very significant inconsistent results.

Decision

Partial summary judgment should only be granted rarely. See Malik, para. 30.

The reason for this is readily apparent to anyone who has gone through a motion for summary judgment, which is hardly ever a summary process, and on most occasions a costly endeavour requiring many billable hours of expensive lawyer time. The law is clear that on a summary judgment motion, evidence must be pulled together to ensure that each party's best foot is put forward. In order to lead trump, a great deal of effort is necessary to present all the relevant facts for consideration by the motions court judge. Case in point is the Motion Record filed in this matter by ELRUS consisting of over 900 pages.

To undertake the degree of effort required in this regard should not be encouraged in circumstances where only a portion of the litigation will be resolved. While removing legal issues from the table in the course of a motion will clear the way for a more focussed trial process, there will be few instances where the benefits of two separate hearings outweigh the costs and effort required to conduct those hearings.

Not only are the costs and the effort of the parties a consideration, but also the impact upon the justice system and the limited resources available to deliver justice to those who are served by our courts. Unless there is a clear outcome which could result from a partial summary judgment procedure which would facilitate an easier resolution to the remaining issues, or set the groundwork for an abbreviated trial process which benefits from the earlier motions court ruling, a request to allocate valuable judicial resources to cover two time intensive and costly proceedings should be discouraged.

In the present case, I am tasked with examining the outstanding issues as between the parties and determining whether or not a hearing seeking the interpretation of the Commissioning stage, and its implications, will shorten, or at a minimum not increase, the time and effort required to address the remaining issues raised within the litigation.

Despite the position of ELRUS which focuses on the interpretation of the Contract language as being a distinct and severable issue suitable for determination through the summary judgment process, I do not assess this case to be appropriate for a partial summary judgment motion.

The counterclaim of Impala alleges the Contract was not completed since the Equipment never performed in accordance with the terms of the Contract. Even if the issue of Commissioning was determined in favour of ELRUS within the proposed motion, this would simply identify that that stage within the Contract was reached, triggering ELRUS' entitlement to the balance of the Contract price. However, the bigger picture issue of whether the balance should be paid would not be determined, which would require a trial.

Resolving the partial summary judgment issues would not result in an outcome which would advance the litigation in an abbreviated fashion. While determining the starting point of the dispute, a significant portion of the litigation would remain outstanding. If successful, partial summary judgment would decide Impala's obligation under the strict terms of the Contract, but it would not decide if ELRUS is actually going to see any of the monies owing under the Contract. That issue would not be resolved until Impala's counterclaim was determined, which means the summary judgment decision would be "parked" until the trial could be scheduled.

I also accept that the documentary evidence necessary to determine the issues raised in the litigation are not currently in the possession of both parties. The manner in which the Equipment was designed and manufactured would be within the knowledge of ELRUS, and the steps taken to operate the Equipment would be possessed by Impala. It is alleged by Impala the Equipment was negligently designed and manufactured, and ELRUS alleges that if the Equipment did not operate as expected, Impala must have done something which was causally linked to the inadequate performance. Given that the Commissioning stage involved the conclusion of assembly, installation, electrification and plant set up and verification of various performance benchmarks, what was involved in the three previous stages before the Commissioning stage would likely become relevant, especially in determining "performance benchmarks", i.e., what the Equipment was supposed to do and designed to do contrasted with what it actually did. These same issues are live within the counterclaim which alleges the terms of the Contract were not met.

Impala asserts that expert evidence may be required in order to assist the trier of fact in determining these issues. There is no doubt that the complexity of the Equipment is not something which a judge would be familiar, and I agree that it is likely experts will be required, including opinions on any applicable standards of care. In light of this complexity, it is foreseeable that a trial judge hearing this evidence will be in a better position to develop a more complete and less nuanced appreciation of the facts than would a motions court judge limited to simply reading – and trying to comprehend - any expert opinions which were filed. The risk of inconsistent determinations exists where the full picture – where one side of the coin is contract interpretation and the other is contract performance – is not presented as would occur at a trial.

As such, in undertaking my triage role, I do not see the benefit – a timely determination of one distinct issue - outweighing the possible negative results – increased costs and inconsistent findings without economising counsel and judicial resources – and the partial summary judgment motion of ELRUS shall not be permitted to proceed.

Case Management Direction

I do take the point of ELRUS, however, that information suggests Impala may be in a position where its Canadian operations will be shut down in the near future. Counsel for Impala points to the fact that this information only comes from media reports. However, if in fact these reports are accurate, then that might change the manner in which the litigation process is designed.

And this "design" is something I am prepared to do.

The original date for the partial summary judgment motion was set for November 18, 2025. While a full day is no longer required, I would ask that the parties attend for the first hour of that appearance to establish a schedule for the management of this matter.

In the meantime, Impala is directed to file affidavit evidence from an appropriate individual within Impala who can speak to the media reports and provide details on any pending decisions which could impact its ongoing operation in Canada. This affidavit evidence will be used to determine how aggressive the case and trial management schedule needs to be.

In other words, if the affidavit evidence from Impala suggests that a closure of its Canadian operations is a possibility, or if the affidavit evidence fails to adequately address this issue, then the timelines for producing documents, conducting discoveries, exchanging expert reports, going through a pre-trial and scheduling a trial can be tightened. Alternatively, if assurances can be made that by the time the issues in this litigation are scheduled to be determined, Impala will still have a presence in Canada, the concerns of ELRUS will be addressed and a more robust schedule can be implemented.

I encourage the parties to discuss these issues before November 18, 2025, when they are directed to appear before me. If no agreement is reached between the parties as to how this matter will proceed, then I would direct their written positions be served, filed and uploaded to Case Center on or before 12:00 noon EST on Friday, November 14, 2025.

The Hon. Mr. Justice S.J. Wojciechowski

Released: October 24, 2025