New Brunswick Court of Appeal Limits Appellate Intervention in Motion Judges’ Discretion to Grant or Deny Partial Summary Judgment

December 5, 2019

In Babin v. C.J.M. Dieppe Investments Ltd. and TG 378 Gauvin Ltd., 2019 NBCA 44, the New Brunswick Court of Appeal made clear that it will not interfere lightly with a motion judge’s discretionary decision to grant partial summary judgment, particularly where a decision on the merits is correct in law.  The Court of Appeal set out a specific list of questions to consider when deciding whether to exercise that discretion where the whole matter would not be disposed of.


Taxi driver Deepak Sood entered the parking lot of an apartment building to pick up his fare. When he realized he needed to reach the apartment building next door, he attempted to drive across the property line dividing the parking lots of the two buildings.

The second building sat at a lower elevation than the first building. The parking lots of the two buildings were separated by a grassy, sloped embankment with a gravel-covered ditch at the bottom. As he attempted to traverse across the slope, Sood’s vehicle dropped into the ditch, causing injuries. He sued the owners of both apartment properties in negligence.  He alleged that from the upper parking lot, the embankment and ditch were concealed and there appeared to be one continuous parking lot.

The owners of the lower property filed a motion for partial summary judgment. The existence of an optical illusion was disputed in the Action; however, the lower property owners invited the motion judge to assume an optical illusion did exist, and that it could reasonably have led Sood to conclude that the two parking lots were at the same elevation.  They argued that regardless, they owed no duty of care toward Sood to know how their property looked from the higher parking lot.

The motion judge agreed and granted summary judgment, dismissing the Action and Crossclaim against the owners of the lower property.  The owner of the higher property appealed the decision. The issues before the Court of Appeal were whether the motion judge erred in:

  • finding the owner of the lower property owed no duty of care to the plaintiff; and
  • exercising his discretion in favour of granting partial summary judgment.

The Decision

On the first issue, the Court of Appeal upheld the motion judge’s decision, and agreed that the lower property owner owed no duty of care to Sood.

On the second issue, the Court of Appeal noted that because the facts were assumed by the motion judge in the worst-case scenario for the lower property owner, the only genuine issue on the motion for summary judgment was a question of law.

In partial summary judgment motions, where there is more than one defendant with only one seeking summary judgment, consideration must be given to whether it is appropriate to dismiss the action against one party where the other parties will nevertheless proceed to trial. The Court of Appeal adopted the factors set out by justice Pepall of the Ontario Court of Appeal in Butera v. Chown, Cairns LLP, 2017 ONCA 783, stating that a motion judge must weigh these factors when exercising his or her discretion:

  1. Is this a case where the issue on which judgment is sought is clearly severable from the balance of the case?
  2. Is there a risk of duplicative or inconsistent findings at trial, including if the record at trial could be different than that of the motion?
  3. Is the granting of partial summary judgment advisable in the context of the litigation as a whole?
  4. Would the motion for summary judgment delay the main action, considering that there is a possibility of appeal?
  5. Are the costs of proceeding with a motion for summary judgment justifiable?
  6. Is it worth the judicial time necessary to rule on a matter that will not wholly dispose of the action?

In Babin, the Court of Appeal pointed out that several factors weighed against the granting of partial summary judgment, including that the decision would not dispense of the action, could delay the main action, and would likely increase the cost to the other litigants. Further, it was at least questionable whether the motion and resulting risk of appeal would be worth the judicial time.

Nonetheless, the Court of Appeal ruled that the motion judge was entitled to deference:

[…]  The fact is that, notwithstanding the factors that weighed against granting summary judgment in favour of only one party, the judge exercised his discretion and granted the order sought. As a result, where the judge’s decision is found to be correct in law, it would serve no purpose to question the exercise of his discretion.

Lessons for Insurers

Going forward, motion judges will have a set of factors to consider when faced with a partial summary judgment and they are likely to carefully weigh and give detailed reasons for their decision to grant or deny partial summary judgment, which will strengthen such decisions against appellate review.  In light of the Court of Appeal’s decision, motion judges may be more confident in exercising their discretion in granting summary judgment going forward.

Related Articles

This Month in Nova Scotia Family Law – March 2024

Fox v. Muise, 2024, NSSC 50 Judge: Honourable Justice Theresa M Forgeron Subject: Child Support, Unjust Enrichment Summary:  Leonard Fox and Margaret Muise have two children born in 2001 and 2004 from a common-law relationship that ended in 2010. In 2012-2013, a contested hearing decided on parenting, child support, and unjust enrichment. Mr. Fox seeks to […]

read more
view all
Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.