Court File and Parties

Court File No.: CV-22-0032-00 Date: 2025-12-09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

GARTH STEEK Not Appearing Plaintiff

• and -

JOHN MILLER — Defendant ERIK MILLER and MICHAEL MILLER — Third Parties HARRISON STEEK — Third Party

Counsel: M. Duffy, for John Miller, Defendant B. Ross & C. Liebzeit, for Erik Miller and Michael Miller, Third Parties Not Appearing

Heard: December 1, 2025 at Kenora, Ontario

Before: Mr. Justice S.J. Wojciechowski

Decision

Overview

1A civil prehearing conference for a partial summary judgment motion which is currently scheduled for January 13, 2026 was held on December 1, 2025.

2B. Ross and C. Liebzeit appeared on behalf of the third parties, Erik Miller and Michael Miller. M. Duffy appeared on behalf of the defendant, John Miller. No one appeared for the plaintiff, Garth Steek, nor the third party, Harrison Steek.

3The purpose of the prehearing conference was to determine if the motion for partial summary judgment scheduled for January 13, 2026 should proceed to argument. This anticipated motion will only address the third party claim of the defendant against the third parties, Erik Miller and Michael Miller ("the Miller Third Parties"). The Miller Third Parties are seeking the dismissal of the Third Party Claim of the defendant.

4As such, considerations arise on whether this partial summary judgment motion should proceed in light of the factors discussed in Malik v. Attia, 2020 ONCA 787 ("Malik"), namely whether the partial summary judgment motion "will achieve the objectives of proportionate, timely, and affordable justice or, instead, cause delay and increase expense": at para. 61.

5The court in Malik identified three issues which should be considered before a summary judgment motion proceeds, namely:

a. whether dividing the determination of the case into several parts will prove cheaper for the parties;

b. how partial summary judgment will get the parties' case in and out of the court system more quickly; and

c. how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

See Malik, at para. 62.

6After discussing these issues with counsel, I agreed to provide them with the opportunity to discuss their respective positions with each other and provide me with written submissions addressing the Malik factors. I have since received their submissions, and these are my reasons for not permitting the partial summary judgment motion to proceed.

Legal Principles

7First, a partial summary judgment motion should rarely be permitted to proceed: Butera v. Chown, Cairns LLP, 2017 ONCA 783, at para. 34. This is because in many cases, discrete issues within a larger piece of litigation cannot be resolved with finality since factual and legal issues are often intertwined within the entire litigation matrix.

8Malik provides that a partial summary judgment motion should only proceed where (i) costs' savings would result, both in monetary terms and in terms of judicial resources, (ii) a speedier resolution to the issues would occur, and (iii) where inconsistent findings were not possible within the context of the motion and the future trial.

9In this case, the summary judgment motion is only "partial" because it seeks to address whether the third party claim of the defendant against the Miller Third Parties should be dismissed. Arguably, the liability of the Miller Third Parties to the defendant does involve a focused inquiry, one theoretically not part of the main action given the plaintiff did not allege the Miller Third Parties were part of the liability chain.

10If the claim against the Miller Third Parties was dismissed, then this would narrow the focus at the trial of the main action which, in turn, would save time and money.

11However, based upon the factual background to this litigation, allocating judicial resources to deal with the third party claim will not significantly shorten the time required for the trial to proceed.

Background Allegations

12The plaintiff alleges that his cottage burned down due to a firepit fire which was lit by the defendant. The defendant alleges that at some point in time, the Miller Third Parties were charged with supervising and maintaining the firepit. So, if the cottage burned down during the time that the Miller Third Parties were "in charge", then they are exposed to liability.

13The fire loss of the cottage, however, did not occur until the day following the evening when the firepit fire was lit. In fact, early in the morning on the day of the fire loss, the defendant did a cursory examination of the firepit, and it appeared that the fire had been extinguished. After that inspection, later in the morning, the cottage was noted to be on fire, many hours after the firepit fire had been started, many hours after the Miller Third Parties were allegedly left in charge of the fire pit fire, and hours after the defendant assessed the firepit fire to be extinguished.

14The Miller Third Parties allege that just because they were the last ones to tend to the firepit fire the evening before the fire loss occurred, this does not create exposure on their part. Absent evidence of them doing or failing to do something, the third party claim should be dismissed.

15The defendant's position is that the firepit fire did not cause nor contribute to the fire loss of the plaintiff. There is no specific evidence suggesting embers from the firepit fire somehow migrated to the cottage. At the time the firepit fire was assessed as being extinguished, the cottage had not yet caught fire. In fact, despite an endorsement providing timelines for the filing of expert reports, the plaintiff has chosen not to rely on any expert evidence in support of causation. Without expert evidence, it will be challenging, if not impossible, for causation to be established within the main action. Having said that, clearly if the plaintiff proceeds with this matter without expert evidence, any available factual evidence will have to be led through witnesses as to how the firepit fire caused the cottage fire.

16In order to determine the liability position of the Miller Third Parties, causation and timing of any acts of negligence will have to be determined. The Miller Third Parties want to rely on the absence of any legal theory, as well as factual evidence, to establish the lack of exposure on their part. However, to determine that issue without first determining the causation issues inherent in the plaintiff's claim, it is possible that facts within the third party claim will be found – this would then become inconsistent with the facts found in the main action on the issue of causation, and vice versa.

Discussion

17It is clear that if the partial summary judgment motion proceeds, and is successful, the Miller Third Parties will still have to testify at the trial of the main action. Their evidence as to what did or did not happen while they remained at the firepit fire in the absence of the defendant will be relevant. As such, proceeding with a partial summary judgment motion now will not reduce the time required to complete the trial in the main action.

18As well, the trial in this matter was scheduled to proceed in September 2025, and is now scheduled to be heard in April 2026. In light of this, resources have already been put aside for an April 2026 trial in order to address all of claims being advanced in the main and third party actions.

19The most compelling reason to permit the partial summary judgment motion to proceed is the fact that the Miller Third Parties, if successful in the motion, will not need to have legal representation at the trial scheduled for April 2026. The time required for their evidence will still be necessary and will not be reduced if they were successful in a summary judgment motion, but their exposure to legal costs would be.

20The issue of legal costs could be addressed through properly structured r. 49 offers, as well as requests to admit which are served in accordance with r. 51. This decision should be brought to the attention of the trial judge in assessing the costs' entitlement of the Miller Third Parties, along with r. 49 and r. 51 documents, to ground arguments for substantial – or full – indemnity costs. Clearly with this motion being brought forward, the defendant is on notice of the Miller Third Parties' position, and if they succeed at trial, this fact should be part of the r. 57.01 analysis in determining the entitlement to costs of the Miller Third Parties.

21While lessening the exposure to legal costs of the Miller Third Parties is a possible outcome of the proposed partial summary judgment motion:

a. the fact that it will not have an impact upon the judicial resources already allocated in September 2025 and April 2026,

b. the fact that the trial which is designed to adjudicate these issues is less than four months away,

c. and the fact that there is a real risk that findings in the motion will be inconsistent with the findings at trial since liability and exposure of the Miller Third Parties is dependent upon the causation issues being determined by the trial judge in the main action,

the Malik factors dictate that the third party claim against the Miller Third Parties be sorted out at the April 2026 trial.

22The partial summary judgment shall not proceed to hearing on January 13, 2026 and that date shall be vacated.

The Hon. Mr. Justice S.J. Wojciechowski