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Orders - Final versus Interlocutory

Civil Procedure - Summary Judgment - Issue Estoppel

2441472 Ontario Inc. v. Collicutt Energy Services (Ont CA, 2017)

In yet another contribution to the vexed issue of when an Order is final or interlocutory, as the determination conditions the appeal route, the Court of Appeal here stated:
[9] An interlocutory order is one that does not determine the real matter in dispute between the parties. It does not determine the very subject matter of the litigation, but rather only a collateral matter: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, at p. 678. The classic test is whether the order finally disposes of the rights of parties: Hendrickson, at p. 680. Furthermore, an order that disposes of an issue raised by the defence, thereby depriving the defendant of a substantive right that could be determinative of the entire action, is final: Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.).
The court also re-iterated law that fact findings made in the course of a motion for summary judgment are not binding for subsequent purposes of the case unless the motions court judge expressly declares them so:
[16] As this court noted in Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375 (CanLII), 115 O.R. (3d) 401, at para. 13, “in most instances, the content of the formal order is integral to determining what has been decided against a party in a fashion that is binding.” It is well-established that an appeal lies from the order, not from the reasons given by the judge making it: Ashak, at para. 13; Grand River Enterprises v. Burnham (2005), 2005 CanLII 6368 (ON CA), 197 O.A.C. 168 (C.A.), at para. 10.

[17] In the summary judgement context, this court has said that purported findings of fact or law by a motion judge who dismisses a summary judgment motion do not have binding effect in the subsequent proceeding unless the judge invokes the power to make such findings under rr. 20.04 or 20.05: Skunk v. Ketash, 2016 ONCA 841 (CanLII), 94 C.P.C. (7th) 141, at paras. 35-36. A motion judge who intends to make such findings should specifically say so, and the order should refer to the relevant rule: Skunk, at paras. 35-36.

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