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Civil Litigation Dicta - Summary Judgment - Appeals. Athanassiades v. Rogers Communications Canada Inc.
In Athanassiades v. Rogers Communications Canada Inc. (Ont CA, 2024) the Ontario Court of Appeal dismisses an action against Rogers Communication for "damages allegedly arising from Rogers’s failure to provide him with internet service and its subsequent collection attempts" under causes of action: "1) spoliation, 2) intentional infliction of mental suffering, 3) defamation and 4) breach of contract." The defendants responded with a summary judgment motion, which resulted in two causes of action being dismissed (which were final judgments) and an order for a 'mini-trial' (an interlocutory order, here under R20.04(2.2)). The plaintiff then appealed to the Court of Appeal before the mini-trial was conducted. The court's legal officer then raised a concern about 'bifurcation' (which I interpret as a concern about 'multiplicity' [CJA s.138]).
The court cites the appellant's 'appeal route' position [CJA 6(1)(b) and 6(2)] in this unusual summary judgment context, as follows:[8] The only part of the notice of appeal that explicitly differentiates between the different aspects of the Order is in the section dealing with this court’s jurisdiction. There, the appellant states that the court has jurisdiction over the appeal based on s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, because the dismissal of the claims for intentional infliction of mental suffering and spoliation are final orders. He also relies on s. 6(2) of the Courts of Justice Act to explain why this court can hear the appeal as a whole.
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C. Analysis
[10] Section 6 of the Courts of Justice Act establishes this court’s jurisdiction. Pursuant to s. 6(1)(b), the court has jurisdiction to hear appeals from final orders, unless the final order falls within the Divisional Court’s monetary jurisdiction of $50,000 or less, or the appeal otherwise lies to the Divisional Court by statute. Pursuant to s. 19(1)(b) of the Courts of Justice Act, appeals from interlocutory orders lie to the Divisional Court, with leave of that court. Section 6(2) of the Courts of Justice Act allows this court to hear combined appeals that fall within the court’s jurisdiction and the jurisdiction of the Divisional Court:The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal. [11] This appeal raises unusual jurisdictional and procedural concerns. There is no doubt that the aspects of the Order dismissing the claims for spoliation and intentional infliction of mental suffering are final. However, these orders were made in the context of a motion for summary judgment that has not yet been completed. Indeed, the mini-trial dealing with the claims for defamation and breach of contract has not yet taken place. The motion judge’s order that these issues be dealt with by way of a mini-trial is interlocutory. Therefore, the proposed appeal arises from a mix of final and interlocutory orders, in circumstances where the motion for summary judgment, which was meant to deal with all four causes of action, has not been completed.
[12] This raises three related concerns that led to the decision to dismiss the appeal.
[13] The first concern is jurisdictional. This court does not have jurisdiction to hear the interlocutory aspects of the Order, absent an order granting leave to appeal from the Divisional Court. Mr. Athanassiades relies on s. 6(2) of the Courts of Justice Act as authority for this court to hear the appeal. However, this court has established that, where an appeal lies to the Divisional Court and leave is required from that court, in the normal course, the appellant must first obtain leave from the Divisional Court before seeking to combine an appeal that lies to the Divisional Court with an appeal that lies to this court as of right: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.), at paras. 15-16; Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, 123 O.R. (3d) 120, at para. 55; Brown v. Hanley, 2019 ONCA 395, at paras. 19 and 20. In some exceptional cases, where an appellant has failed to obtain leave from the Divisional Court, this court has granted leave as part of the appeal: Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.), at para. 9; Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at paras. 25-26, leave to appeal refused, [2017] S.C.C.A. No. 289; P1 v. XYZ School, 2021 ONCA 901, 160 O.R. (3d) 445, at paras. 37-39. However, these are exceptional cases where this court has found that leave would inevitably have been granted because the final issues that were decided are so intertwined with the interlocutory issues raised on appeal. This is not such a case. On the contrary, as discussed below, the focus of the appeal is on the interlocutory aspects of the decision and not on the final aspects.
[14] The second concern relates to the manner in which Mr. Athanassiades has framed his appeal. In theory, despite the fact that this court does not have jurisdiction over the interlocutory aspects of the appeal, we could proceed to hear an appeal from the aspects of the Order that are final. However, in the circumstances of this case, such an approach is impracticable because the crux of Mr. Athanassiades’s complaint is not the dismissal of his claims for intentional infliction of mental suffering and spoliation per se, but rather the manner in which the motion judge approached the motion for summary judgment, with particular emphasis on the terms of his direction of a mini-trial.
[15] The third concern is one of procedure and judicial economy. Rule 20 of the Rules of Civil Procedure sets out the procedures to be followed on a motion for summary judgment. Rule 20.04(2) requires motion judges to grant summary judgment if they are satisfied that there is no genuine issue for trial. Rules 20.04(2.1) and (2.2) set out the motion judges’ factfinding powers on a motion for summary judgment. This includes the authority to hear oral evidence. Accordingly, the motion judge’s direction that there be a mini-trial and further submissions on the claim for breach of contract is part of the motion for summary judgment proceeding. This appeal was therefore launched before the motion for summary judgment was even completed.
[16] It is singularly impractical and a waste of judicial resources to hear an appeal from a motion for summary judgment that has not yet been completed. This leads to an unnecessary and wasteful fragmentation of summary judgment proceedings that are designed to resolve disputes in a timely and cost-effective manner. If Mr. Athanassiades loses after the completion of the motion for summary judgment, this would be the sensible point in time to appeal the full outcome of the motion for summary judgment. If Mr. Athanassiades succeeds on the balance of the issues left to be decided on the motion for summary judgment, he can then decide whether to proceed to trial on the remaining issues or whether to appeal with respect to the aspects of his claim that were dismissed before proceeding to trial. This is a far more efficient way of proceeding.
[17] Awaiting the outcome of the mini-trial also potentially avoids concerns over partial summary judgment. As this court has cautioned on several occasions, courts should only grant partial summary judgment in the “clearest of cases”, in part to avoid inconsistent or duplicative findings: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 at para. 34; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561 at para. 4; Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 26-29. At this point, given that the mini-trial has not been decided, the issue of partial summary judgment has not yet crystallized. It is unknown whether the motion for summary judgment will dispose of all causes of action or whether the motion judge will dismiss Rogers’s motion for summary judgment in relation to those causes of action and refer one or both of them to a full trial. There may well be concerns over granting partial summary judgment in this case, but it is not possible to properly decide or address that issue until the completion of the mini-trial.
[18] The appeal was therefore dismissed because the court does not have jurisdiction over the interlocutory aspects of the Order, because the grounds of appeal do not properly distinguish between the final and interlocutory aspects of the Order, and because the motion for summary judgment has not been completed.
[19] Absent some truly exceptional circumstances, which are not present in this case, parties ought not to appeal to this court before a motion for summary judgment has been completed. Although it would be unwise to state categorically that such an appeal should never be brought, the circumstances under which it would be advisable are not readily apparent. In any event, any such appeal must be brought with proper regard to the respective jurisdictions of this court and the Divisional Court.
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