SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Volmar v. Van Schnydel et al.
BEFORE: Associate Justice Kamal
COUNSEL: Patrick Poupore, for the Plaintiff Email: ppoupore@diamond.law.ca Phone: 613-216-1047
Maggie MacDonald, agent for Pat C. Peloso for the Defendant Email: ppeloso@cavanagh.ca Phone: 613-560-8558
O’Neal Ishimwe for the Third Party Email: oishimwe@blg.com Phone: 613-787-3571
HEARD: January 12, 2026
CASE CONFERENCE ENDORSEMENT
- The purpose of the conference was to triage a motion for summary judgment being requested by the Defendant, Dominion of Canada General Insurance (“Dominion”).
Background and Positions of the Parties
This action arises out of a rear-end motor vehicle accident on September 12, 2019. The plaintiff was stopped at a red light when his vehicle was struck from behind by the defendant driver, Daniel Van Schyndel.
Mr. Schyndel was operating the defendants’ vehicle, owned by the defendant, Junior Ramkisson, without a licence and so has been denied coverage by Mr. Ramkisson’s insurer, Certas Home and Auto Insurance Company (“Certas”). Certas has added itself to this action as a statutory third party.
The plaintiff brings his action against Dominion pursuant to the OPCF-44R endorsement in his own policy, which provides underinsured protection for third-party negligence up to the policy limits of $2,000,000.00.
Dominion seeks to move for a partial summary judgment on the issue of whether Dominion’s ongoing involvement in this action is warranted and whether the claims against it should be dismissed on a summary basis.
Dominion’s position is that summary judgment is appropriate for the following reasons:
The plaintiff will not pass the threshold of having sustained permanent and serious injuries.
The plaintiff has provided no evidence that he will require future attendant care, treatments or medications. He is currently performing housekeeping activities and is earning more income than he did pre-accident.
Certas, despite taking an off-coverage position, has the policy that will respond with the first $200,000.00 of any damages awarded in the action. The plaintiff’s damages will not exceed $200,000.00.
The Plaintiff takes the position that summary judgment is not appropriate for several reasons, including:
The motion is premature because the evidentiary record necessary to fairly determine the issues Dominion raises (including threshold/permanency/serious impairment and damages issues) is not complete.
Dominion’s position advances positions on threshold and quantum at this early stage, including that the plaintiff will not satisfy the threshold and that the claim will not exceed $200,000. Those positions cannot fairly be determined on the present record and are, in any event, not dispositive of the action. The Plaintiff does not concede that the claim will not exceed $200,000.
The plaintiff submits that the statutory threshold and statutory deductible apply to damages for nonpecuniary loss (general damages for pain and suffering). They do not apply to the plaintiff’s pecuniary claims (including past/future income loss and loss of earning capacity/loss of competitive advantage).
The plaintiff’s pecuniary exposure may be significant if the plaintiff is found to be impaired in his ability to work (past income loss and/or future loss of earning capacity/loss of competitive advantage), and those heads of damage are not subject to a threshold or deductible.
The standard of proof for future pecuniary loss is not “balance of probabilities” as to the future outcome, but whether there is a real and substantial risk/possibility of such loss. This is a much lower bar and certainly not subject to the deductible or the threshold.
The existing medical and treatment evidence already demonstrates ongoing complaints and functional impact extending beyond the immediate post-accident period.
The Plaintiff further submits that Dominion’s insurer examination material reflects that the psychological component cannot be assessed on an incomplete record: the examiner states she is unable to determine whether a psychological injury is attributable to the accident and requests additional pre-accident medical records. This underscores why a dispositive motion is premature.
Certas take no position regarding the proposed motion for summary judgment. Certas maintains its subrogation rights on its $200,000 statutory minimum policy limits.
In considering the efficiency of the proposed summary judgement motion, Dominion submits that the motion would be 2 hours and include 1 affidavit from them, with 6-8 documents. Dominion submits that this would resolve the litigation against them.
The proposed motion for partial summary judgment is not appropriate for the following reasons:
a. Proceeding by way of in this case partial summary judgment could result in inconsistent findings by future decision-makers that impact the interests of the remaining litigants b. There may be significant issues of credibility that will be in dispute; and c. The potential efficiency and cost/time savings do not outweigh the potential injustice.
LAW AND ANALYSIS
- The Supreme Court of Canada has stated that when the process allows the judge to make the necessary findings of fact, to apply the law to those facts, and it is a proportionate, more expeditious and less expensive means to achieve a just result, summary judgment is the appropriate remedy: see Hryniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7 at para. 49.
Determining the Appropriateness of a Summary Judgement Motion at a Case Conference
The Notice to the profession and public for civil litigation matters in Ottawa sets out a procedure in which motions for summary judgment are triaged by an associate judge. If the request to proceed to a summary judgement motion is granted, directions for the hearing, including a timetable and mode of hearing, will be set at the case conference.
I have jurisdiction to determine whether a motion for summary judgment is appropriate: See RNC Corp. v. Johnstone, 2020 ONSC 7751 at para. 18; Griva v. Griva, 2016 ONSC 1820.
Triaging summary judgement motions is the type of issue that is dealt with at a case conference pursuant to rule 50.13(5) and a power available at a case conference by rule 50.13(6).
I adopt the analytical framework articulated by Brown J. (as he then was) in George Weston Limited v. Domtar Inc., 2012 ONSC 5001.
The focus of the analysis is whether the issues raised by the action can be resolved by way of a summary judgment motion and whether the proposed summary judgment motion will assist in the efficient resolution of the proceeding. See: Fraser v Pearson, 2025 ONSC 2473.
As Justice Myers outlined in RNC Corp. v. Johnstone, 2020 ONSC 7751, there are indicia of when a summary process may be fair and just and where the comparison to the litigation as a whole supports summary resolution. Without being exhaustive, perhaps the most common and significant factors are:
(a) Where the issue on the motion and the evidence relied upon is narrow, neat and distinct from the issues and evidence on the underlying merits. See: Griva v. Griva 2016 ONSC 1820.
(b) Where the process is attenuated, with little delay and little additional cost. See: Butera v. Chown, Cairns 2017 ONCA 783, at paras. 30 and 31.
(c) Where there is little or no additional evidence available to lead at a trial on the issue(s).
(d) Where credibility is not in issue or, if it is, it is a near slam dunk. If credibility findings rely on adverse inferences, burden of proof, or the "best foot forward" rule, then the chances of a judge finding the comfort required by Hryniak is greatly decreased.
Partial Summary Judgement Motions
Dominion’s request is a request for a partial summary judgement. The proposed motion would only determine the claims brought against Dominion.
When considering if it is in the interest of justice to grant summary judgment where some but not all parties bring a motion for summary judgment, the court must consider “the consequences of the motion in the context of the litigation as a whole.” See: Orgorzaly v. Shakrah, 2020 ONSC 6117 at para 41.
In Malik v. Attia, 2020 ONCA 787, the Court of Appeal for Ontario stated that when faced with a request to hear a motion for partial summary judgment, a judge should make three simple requests of counsel or the parties:
Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties.
Show how partial summary judgment will get the parties’ case in and out of the court system more quickly.
Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.
In Butera v. Chown, Cairns LLP, 2017 ONCA 783, at para. 34, the Court of Appeal for Ontario cautioned that partial summary judgment should be considered a rare procedure. It should only be used in limited circumstances where “an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner.”
The Court of Appeal for Ontario has cautioned against granting partial summary judgment except where there is “no risk of duplicative or inconsistent findings at trial and that granting summary judgment [is] advisable in the context of the litigation as a whole”. See: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, at para. 4.
Counsel for Dominion emphasized that the case law states that while partial summary judgement motions are rare, the law does not preclude them, nor are they impossible.
Dominion further submits that if the three-part Malik test is met, the partial summary judgement should proceed.
In my view, the criteria set out in Malik is not an exhaustive test and must be considered amongst other criteria, including the non-exhaustive outlined in RNC Corp. v. Johnstone, 2020 ONSC 7751.
A holistic approach must be taken by the court, and the impacts of the proposed motion must be considered while looking at the entirety of the litigation.
Risk of Inconsistent Findings
The potential for inconsistent findings is an important consideration. I appreciate that the risk of inconsistent findings is only one of several matters that a motion judge must consider when asked to entertain a motion for partial summary judgment. See Malik v. Attia, 2020 ONCA 787 at para. 61.
In my view, there is a significant risk that findings made at the proposed summary judgment will be problematic if they are inconsistent with the findings made at the trial.
Broadly speaking, inconsistent findings refers to a situation where one judge or associate judge on the summary judgment motion decides an issue one way (including findings of facts, determinations of credibility, or determining substantive legal issues), and a judge later decides related facts or issues differently. This creates contradictions that are problematic in achieving justice for that case.
Courts are cautious about granting partial summary judgement when the facts or issues to be decided now are closely intertwined with issues that will be decided later, and deciding it early could prejudge facts that the other judge still needs to resolve.
In the present case, the effect of the proposed partial summary judgement motion may be that Dominion would no longer be required to participate in the proceeding. The result of the partial motion for summary judgement would likely result in a finding (or at least judicial opinion) about whether the damages will, or will not, exceed $200,000.
While the Plaintiff takes the position today that it is clear and obvious that the plaintiff’s damages will not exceed $200,000.00, in my view, a motion judge would likely not be able to decide that issue based on a written record in a summary judgement. The effect of proceeding by way of summary judgement would be highly prejudicial to the Plaintiff based on a written record.
If I permit Dominion’s request for a partial summary judgement to proceed, it may effectively lock in certain factual findings that would impact the result of the trial, and force the trial judge into a corner where their findings would contradict the court’s earlier ruling.
While the risk of consistent findings is not determinative, taken together with the other concerns outlined herein, Dominion’s request for a partial summary judgement is not appropriate.
Credibility
Summary judgement is not appropriate where the outcome of the issue(s) in dispute turns largely on credibility. See: Orgorzaly v. Shakrah, 2020 ONSC 6117.
Credibility issues can be readily resolved in some cases. For example, in certain matters, there is a strong documentary record that disproves or overwhelms a party's subjective evidence and claims. Some witnesses' testimony just defy common sense. See: Faryna v. Chorny.
Where credibility is in issue and, especially, where the evidence of two or more witnesses is in opposition, absent a clear and definitive contemporaneous documentary record or a Perry Mason out-of-court cross-examination, the motion is sounding more like a trial: RNC Corp. v. Johnstone, 2020 ONSC 7751 at para. 16.
It is not always a simple task to assess credibility on a written record. If it cannot be done, that should be a sign that oral evidence or a trial is required. The motion judge would be required to engage in a credibility analysis or attempt to provide conclusions on credibility. See: Trotter Estate, 2014 ONCA 841 at para. 51; Sagl v. Cosburn, Griffiths & Brandham Insurance Brokers Ltd., 2009 ONCA 388, at paras. 98-100.
When it is clear at this juncture that the motion judge will have to require oral evidence or a trial to assess credibility with respect to key issues, this is not an efficient or cost-effective approach.
As noted by the Court of Appeal in Cook v. Joyce, 2017 ONCA 49, at para. 92, the more important credibility is in determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record.
Based on the submissions and materials filed for this case conference, in my view, there are likely significant issues of credibility that will be in dispute that would render the partial judgment inappropriate.
In the summary-judgment context, “significant credibility issues” refers to situations where the outcome of the motion depends in a meaningful way on deciding who should be believed by the motion judge. Where that determination cannot fairly or reliably be made on a written record alone, a judgement motion is not appropriate.
In the context of the present, both counsel submitted that the credibility of the plaintiff would not be a significant issue.
When asked, both counsel advised that there would inevitably be competing expert reports. In my view, this needs to be considered whether that would be a significant credibility issue.
The competing experts' reports will touch on issues such as future attendant care, treatments or medications, and any potential future loss of income. In practice, if the court is not able to determine these key issues due to credibility issues of the experts, this would be a significant barrier for the proposed summary judgement motion.
Dominion’s position is that the plaintiff will not pass the threshold of having sustained permanent and serious injuries. The determination of this issue turns largely on credibility. This would not be a determination that could be able to be made simply from a few documents, in two hours. In my view, Dominion overstates its chance of success and oversimplifies the issue.
If credibility is merely incidental or can be assessed using documents or limited cross-examination, summary judgment may still be appropriate. But if credibility is central to the core issues, it may not be.
To be clear, the mere fact that parties (or witnesses, including experts) disagree does not automatically create a significant credibility issue. Furthermore, minor or peripheral credibility disputes do not bar summary judgement.
While I appreciate that a judge has expanded to assess credibility pursuant to the Rules, this power must be considered through the lens of considering costs and efficiency, and considering the consequences of the motion in the context of the litigation as a whole.
In light of the significant credibility issues, it is not appropriate to expend the parties and the Court’s resources that will not be able to be resolved at the motion for summary judgement.
Potential Efficiency Does Not Outweigh Potential Injustice
Dominion submits that proceeding by way of a summary judgement motion would be efficient.
In my view, any potential efficiency is outweighed by the risk of injustice caused by inconsistent findings and credibility issues.
Furthermore, if the partial summary judgement is not successful, it would be significantly less efficient for the parties.
For Dominion, if they are successful, they would be out of court sooner, but the case would still be in the Court. But what happens if the outcome at trial is that damages are assessed to be more than $200,000? This risk would severely jeopardize achieving justice in this case.
From the perspective of the Plaintiff, they would have to respond to the partial summary judgement motion, and regardless of the outcome of the summary judgement motion, the Plaintiff would be required to have a trial.
The materials before me do not support that dividing the issues into several parts would be cheaper for the parties, nor would it get the parties’ case in and out of the court system more quickly.
Dominion also submitted that the partial summary judgement motion would save time, expense and resources for the parties and the Court. The obvious time and cost savings will come from one less party, resulting in one less party leading evidence and one less party’s counsel asking questions of the other witnesses in cross-examination.
I agree with that. But I do not agree that the little time and expense saved would outweigh the risk of a potential injustice.
In reality, for the trial, defence counsel would work together and not be duplicative. The additional time, expense and resources as a result of one additional party would not be significant.
Dominion also submitted that a summary judgement motion would streamline the process even if they are not successful. In that regard, Dominion submitted that an opinion set out by way of the summary judgement motion decision would assist the parties in moving the matter forward, either assist them to settle or narrow the issues for the trial.
Dominion submitted that such an approach is in line with the purpose of summary judgement motions, being to get the parties’ case in and out of the court system more quickly, as discussed in Malik.
I respectfully disagree with that submission. While the system encourages processes that streamline proceedings, summary judgment is not a tool that should be used because it may contain an opinion that would help settle or narrow the issues. Our system has other tools better suited to accomplish that goal – pre-trial conferences, mediation, and case conferences are some examples. The purpose of a summary judgement motion is not to obtain a judicial opinion for settlement purposes or to assist the parties in narrowing the issues (without disposing of them in the motion).
In considering the efficiency of the proposed summary judgement motion, the Plaintiff submitted that the request to proceed with the summary judgement motion is premature. The Trial record has not been filed. The Plaintiff has not updated their expert report. As a result, the Plaintiff the anticipated record on which the motion would be adjudicated is not complete.
I agree with the Plaintiff that the request for a summary judgement motion is premature. While I am presently concerned about the risk of inconsistent findings, potential significant credibility issues, and lack of efficiency, these issues may become more clear as the evidentiary record develops. This may also result in counsel agreeing to narrow issues or concessions being made between the parties. If that happens, it may become appropriate for Dominion to proceed with a partial summary judgement motion.
CONCLUSION
Accordingly, Dominion’s request to proceed to a partial summary judgement motion is dismissed, without prejudice to make the request again after the Trial Record has been filed.
I would also like to comment that counsel that appeared at this case conference displayed the highest level of professionalism, civility, and courtesy to each other and to the Court. The Court appreciates and encourages all counsel to always act with the highest level of professionalism, civility, and courtesy to each other and to the Court.
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Associate Justice Kamal
Date: January 12, 2026