McCague Borlack LLPLitigation Boutique, GLOBAL Litigation Law Firm




Articles and Publications

August 2017

One small step for summary judgements, one giant leap for efficiency

ONSC Judge expands the utility of summary judgement motions

Howard Borlack
Howard Borlack,



By Howard Borlack

The Ontario Superior Court's recent decision in Fairfield Sentry Limited et al v PWC et al signals a widening role for summary judgement procedures.

This action arises from the infamous Ponzi scheme perpetrated by Bernie Madoff until 2008. The plaintiff's, through the liquidators, brought this action against Price Waterhouse Cooper and Stephen Wall (collectively PWC") claiming breach of contract and/or negligence for not raising concerns about the Bernard L. Madoff Investment Securities LLC during their audit of the Fairfield Funds on April 24, 2007. The plaintiffs claimed because of PWC's failure to discover Madoff's scheme, they suffered monetary losses.

PWC brought a motion for summary judgement. At issue in the motion was only the plaintiffs' alleged damages. The plaintiffs and defendants each submitted affidavits containing estimates of the damages, with a liquidator for the plaintiffs, Mr. Krys, estimating just over 2.4 billion dollars and the defendant's expert, Dr. Marais, estimating that the plaintiffs were financially better off for not having been aware of the fraud in April 2007.

It was argued by the plaintiffs that with competing experts the issue should not be decided by summary judgement. Justice Newbould described such an argument in this case as being "overblown". He cites the Supreme Court of Canada's decision in Hryniak v. Mauldin, in which they wrote that there is no genuine issue for trial and summary judgement must be made if the summary judgement process "(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result."  

Justice Newbould described such an argument [...] as being "overblown

In his view, he had sufficient evidence in front of him to evaluate the evidence and fairly decide the single issue of what damages would have been suffered had PWC discovered the fraud during their audit in April 2007, rather than it being discovered in 2008. He considered the evidence and criticisms put forward by the affidavits and the cross-examinations of the witnesses and ultimately agreed with the findings of the defendants' expert, Dr. Marais.

Most counsel believed that it would be impossible to obtain summary judgment to dismiss a claim when there were competing accounting experts touting complicated theories of damages arising from a complex fact situation with a very large quantum claimed. Justice Newbould stripped away the clutter and felt confident that he could determine the quantum of damages and dismissed the claim having determined that the plaintiff did not suffer any damages. This decision gives hope to all that summary judgment may be considered more often as a means of ending long and expensive disputes at an early stage even where the damage claim is large and the issues are complex requiring expert evidence.


Copyright McCague Borlack LLP - Legal Notice | | Follow us on Twitter twitter

McCague Borlack LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms. Through CLC's association with The Harmonie Group, our clients have access to legal excellence throughout North America, the U.K. and Europe. |