In an Action resulting from the failure of the roof of a shopping mall, the Applicants applied for Summary Dismissal of the Claims against them in four related Actions. The Actions involved over 30 parties, and the Applicants were named in each as Third Party Defendants, Co-Defendants or both. The Applicants argued that there was no merit to the Third Party Claims or Notices to Co-Defendants filed against them.

Feehan J. reviewed the modern test for Summary Judgment, and noted that the jurisprudence is unclear on the standard of proof that the moving party must meet. Feehan J. held that there was merit to the Claims made against the Applicants. Feehan J. reviewed case law from Ontario which “reveals some concern as to whether dismissal of Third Party claims in complex actions with a significant number of parties is appropriate.” Feehan J. noted that dismissing Third Party Claims “creates a risk of inconsistent findings of fact concerning the responsibility of the defendants to the plaintiffs and the third parties to the defendants”. In addition, it requires the “defendant to make the plaintiff’s case in order to justify the defendant’s own claim....on a third party’s motion for summary judgment”.

Justice Feehan held that not enough information was available to make the relevant findings of fact with respect to the failure of the mall’s roof, and that this was a decision that ought to be made in the context of the litigation as a whole. Feehan J. held that more evidence and more detailed argument were necessary to make a fair and just disposition. Based on the context and the fact that the litigation was at an early stage, Justice Feehan stated that “it would be unfair to make findings of fact and apply the law to findings of fact in third party proceedings at this time”.

Feehan J. held that Summary Judgment was not appropriate and a Trial would be required as there were many “genuine and meritorious” issues and the legal issues involved were complex and closely tied to the facts. The Application for Summary Dismissal was dismissed.