Summary Judgment - Issue Estoppel. Coutinho v. Ocular Health Centre Ltd.
In Coutinho v. Ocular Health Centre Ltd. (Div Ct, 2021) the Divisional Court considers judicial issue estoppel practice where a motion for summary judgment is dismissed and the matter is sent down for trial:
 It is clear that the motion judge made a final decision about these two defences, given that he restricted the scope of the issues for trial to exclude those defences. Those final determinations ought to have formed part of the order. As the Court of Appeal stated in Skunk v. Ketash, 2016 ONCA 841 at para. 62:. 2441472 Ontario Inc. v. Collicutt Energy Services
The daily workload of Superior Court motion judges is heavy. Nonetheless, when dismissing a summary judgment motion, I would urge them to specifically consider to what extent they are making determinations of law intended to be binding on the parties at trial, and, if they are intending to make such determinations, invoke r. 20.04(4) and make clear in their orders and reasons that the determination is intended to be binding on the parties at trial.
In 2441472 Ontario Inc. v. Collicutt Energy Services (Ont CA, 2017) the Court of Appeal re-iterated the principle that fact and law 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:
 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.. D’Onofrio v. Advantage Car & Truck Rentals Limited
 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.
In D’Onofrio v. Advantage Car & Truck Rentals Limited (Ont CA, 2016) the Court of Appeal in obiter held that a non-participating party would be bound by fact-findings despite their taking 'no position' on the motion, on the basis that the fact-findings were material to their defence and that they had an oppourtunity to participate. The clear implication is that all parties who have any stake in issues to be argued on the summary judgment motion should participate fully at least on those issues (ie. 'put their best foot forward': para 37), or else risk a negative issue estoppel arising. However, in this case since the Order being appealed from was eroneously made 'on consent', the court further held that no issue estoppel arose because a consent order is "not a judicial determination on the merits of a case" and so creates no estoppel [para 44].
. Vanden Bussche Irrigation & Equipment Limited v. Kejay Investments Inc
In Vanden Bussche Irrigation & Equipment Limited v. Kejay Investments Inc. (Ont CA, 2016), which considers the law of interlocutory versus final orders, primarily stands for the proposition that fact-findings made in a summary judgment motion (where the standard is whether there is a 'genuine issue for trial') are only binding at trial when the motion judge expressly declares them to be so in their reasons and/or the written Order:
 In Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375 (CanLII), this court, based on identical wording in the order, held at para. 7, that the order was not a final order because, “a decision under Rule 20 determines only that a genuine issue requiring a trial exists. Accordingly to the extent that a motion judge may purport to make findings of fact in reasons for judgment dismissing a Rule 20 motion, such findings do not have binding effect.”
 The court in Ashak further noted at paras. 8-11 that while a court has the power to make binding determinations of fact under rule 20.05 when dismissing a motion for summary judgment if a court proposes to exercise that power the motion judge should say so and the formal order should reflect that. A similar power to make a binding determination of law likely exists under rule 20.04(4), but again, if the motion judge purports to exercise that power, the judge should specifically invoke and reference the rule and the legal determination made should form part of the formal order.
 Since the decision in Ashak, there has been jurisprudence from our court explaining that in some cases to determine whether an order is truly final or interlocutory one needs to look at the reasons and determine whether a defendant has been deprived of a substantive right or defence that could resolve all or part of the proceedings: Walchuk, Estate Trustee and Houghton,  O.J. No. 6492, at para. 14.
 In this case, the motion judge did not specifically invoke and reference the rule giving him the power to make a binding determination nor does the order taken out reflect any determination on the issue of the limitation period. Although the limitation period defence was the only issue before the motion judge and he purported to decide it, he also refused to grant summary judgment on the claim to the plaintiff and sent the matter on for trial. It does not appear that there would be any reason for him to do so unless he was of the opinion that there was a genuine issue requiring a trial respecting the limitation period.
 In the result, I have concluded that the motion judge’s determination that the limitation period had not run is not binding and is not a final order. Accordingly, were I to grant leave to file a notice of appeal, this court would not have jurisdiction to entertain the appeal and for this reason the motion is dismissed.