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Estoppel - Issue Estoppel - Final versus Interlocutory Orders

. The Rosseau Group Inc. v. 2528061 Ontario Inc.

In The Rosseau Group Inc. v. 2528061 Ontario Inc. (Ont CA, 2023) the Court of Appeal considered whether issue estoppel applied to prevent a dismissed fact issue (first advanced at an interlocutory motion) being advanced again at trial. The court resolved this on the 'final versus interlocutory' distinction:
[49] Nor did the reasons given on the motion to vacate the CPL, that Rosseau Group was not ready, willing, and able to close because it took no steps to assume the BMO Mortgage, preclude the trial judge from reaching a different conclusion on this point.

[50] 252 relies on the principle accepted in Earley-Kendall v. Sirard, 2007 ONCA 468, 225 O.A.C. 246, at para. 43, that a decision on an interlocutory motion is binding on the parties with respect to other proceedings in the same action. In Earley-Kendall, a defence motion seeking to adjourn the trial to allow for a medical examination of the plaintiff was dismissed. This was held to preclude a second defence motion compelling the plaintiff to attend a defence medical examination. The two defence motions were found to have been for substantially the same relief; the decision on the first motion therefore barred the second motion under the doctrine of issue estoppel: at paras. 44, 45, and 47.

[51] 252 argues that this principle has been applied to preclude a party, on a motion for summary judgment, from arguing a point decided against them on a CPL motion, and that the same approach should follow at trial. It points to Lamba v. Mitchell, 2021 ONSC 1612, where one of the issues on a summary judgment motion was whether there had been a material misrepresentation in pre-contractual information about the house that was to be purchased. The summary judgment motion judge noted, as one of the reasons for rejecting the claim of material misrepresentation, that there was a finding about this issue on an earlier motion for leave to issue a CPL: at paras. 31-35. He used this as an alternative ground for rejecting the argument of material misrepresentation, having also found on the record before him that there was no material misrepresentation: at para. 30.

[52] I do not accept the argument of 252 that the trial judge was, in this case, bound by the reasons given when the CPL was vacated. To the extent that the decision in Lamba suggests otherwise, it is inconsistent with the jurisprudence of this court and should not be followed.

[53] The principle in Earley-Kendall applies to prevent a party from relitigating a decision. When the question is whether a trial judge is bound by something that occurred on an interlocutory motion, the distinction between what was decided and the reasons why that decision was made is important.

[54] A CPL confers no rights − it gives notice that there is a claim in the action to an interest in land. The decision as to whether a CPL should be granted or vacated is only a decision about whether notice of the claim should be registered or removed from title. The claim itself is only determined by the final decision in the action: G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 CanLII 6832 (ON CA), [2002] 58 O.R. (3d) 87 (C.A.), at para. 26. A decision about the CPL does not determine the validity of the claim one way or the other. Litigating the claim, and issues in the claim, at trial is not relitigating anything decided in a motion about the CPL.

[55] This court has held that an order granting or lifting a CPL is, for appeal purposes, an interlocutory, not a final, order. This is precisely because it “does not finally determine the litigation” or “any issue in the litigation, which remains ongoing”: 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, at para. 9.

[56] As the decision about the CPL in this case did not finally determine any issue in the litigation, comments in the reasons given on the CPL motion have no effect on those issues. In Frezza, this court held that the reasons of a motion judge for denying a CPL (for example, reasons about whether the claim was statute barred) are not binding on the trial judge, because they do not constitute the final determination of any issue relating to the validity of the claim for the purpose of granting or denying judgment on the claim: at paras. 10, 14.

[57] Accordingly, the trial judge was correct not to consider herself bound by the reasons given on the motion to vacate the CPL. Adopting the language in Frezza, the “full record for finally determining the issue [of whether Rosseau Group was ready, willing, and able to close] may or may not have been placed before the motion judge, but only enough to allow the motion judge to make or deny the discretionary order that was sought. In any event, the court [on the CPL motion] was not asked to make a final determination of [that] issue”: at para. 14.


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Last modified: 11-12-23
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