A recent decision of the Ontario Court of Appeal, D’Onofrio v. Advantage Car & Truck Rentals Ltd., 2017 ONCA 5, asks whether a party who takes “no position” on a summary judgment motion is later bound by the motion judge’s findings in the ongoing litigation. The case highlights the dangers of taking “no position”: a party who does so may later be precluded from advancing positions at trial that were decided by the motions judge.
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