Cole v. Hamilton (City), 2002 CanLII 49359 (ON CA)

Cole et al. v. The Corporation of the City of Hamilton et al. [Indexed as: Cole v. Hamilton (City)]

60 O.R. (3d) 284

[2002] O.J. No. 4688

Docket Nos. M28619 and C38104

Court of Appeal for Ontario

Cronk J.A.

July 3, 2002

Appeal -- Jurisdiction -- Court of Appeal -- Divisional Court -- Orders -- Final or interlocutory orders -- Plaintiffs moving for partial summary judgment -- Plaintiffs' motion for partial summary judgment dismissed -- Defendants concurrently moving for summary judgment dismissing plaintiffs' action - Defendants' motion for summary judgment granted -- Plaintiffs seeking to appeal order made on respective motions for summary judgment -- Court of Appeal having jurisdiction to hear appeal of order dismissing plaintiffs' action -- With leave having been granted, Divisional Court having jurisdiction to hear appeal of dismissal of plaintiffs' motion for partial summary judgment -- Once leave to appeal to Divisional Court granted, then, pursuant to s. 6(2) of Courts of Justice Act, Court of Appeal could dispose of both final and interlocutory aspects of order made on motions for summary judgment -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6.

Judgments and orders -- Final or interlocutory -- Appeal -- Jurisdiction -- Court of Appeal -- Divisional Court -- Plaintiffs moving for partial summary judgment -- Plaintiffs' motion for partial summary judgment dismissed -- Defendants concurrently moving for summary judgment dismissing plaintiffs' action -- Defendants' motion for summary judgment granted -- Plaintiffs seeking to appeal order made on respective motions for summary judgment -- Court of Appeal having jurisdiction to hear appeal of order dismissing plaintiffs' action -- With leave having been granted, Divisional Court having jurisdiction to hear appeal of dismissal of plaintiffs' motion for partial summary judgment -- Once leave to appeal to Divisional Court granted, then, pursuant to [page285] s. 6(2) of Courts of Justice Act, Court of Appeal could dispose of both final and interlocutory aspects of order made on motions for summary judgment -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6.

The plaintiffs moved for summary judgment on part of their claim. Their motion was dismissed. The plaintiffs' motion was heard at the same time as a motion for summary judgment made by the defendants. The defendants' motion was successful and, in an order dated March 22, 2002, Borkovich J. dismissed the plaintiffs' action. The plaintiffs appealed to the Court of Appeal that part of the order granting the defendants' motion for summary judgment, and they moved before the Superior Court of Justice for an order granting leave to appeal to the Divisional Court from that part of the order that dismissed their motion for a partial summary judgment. The defendants moved for directions and a determination of whether the Court of Appeal had jurisdiction to dispose of all matters.

Held, the directions sought should be denied.

The Court of Appeal did not have jurisdiction to hear all matters that were before the motions judge. An appeal from a final order lies to the Court of Appeal under s. 6(1)(b) of the Courts of Justice Act. However, the portion of the order that concerned the plaintiffs' motion for partial summary judgment was not a final order but was an interlocutory order, since it did not determine the substantive rights of the parties and left them to be resolved by subsequent adjudication. By virtue of s. 19(1)(b) of the Courts of Justice Act, an appeal from an interlocutory order lies to the Divisional Court if leave to appeal is granted under rule 62.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Once leave to appeal has been granted -- but not before -- resort may be had to s. 6(2) of the Courts of Justice Act for an order that the Court of Appeal also hear and determine the appeal to the Divisional Court. Accordingly, the appeal to the Court of Appeal should not be heard until final disposition of the motion for leave to appeal to the Divisional Court or further order of the Court of Appeal.

MOTION for directions.

Cases referred to Albert v. Spiegel (1993), 17 C.P.C. (3d) 90 (Ont. C.A.); Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 2000 16991 (ON CA), 51 O.R. (3d) 641, 195 D.L.R. (4th) 135, 41 R.P.R. (3d) 1 (C.A.), supp. reasons (2001), 2001 2615 (ON CA), 204 D.L.R. (4th) 744, 14 C.P.C. (4th) 7 (Ont. C.A.); Merling v. Southam Inc. (2000), 2000 5621 (ON CA), 183 D.L.R. (4th) 748, 49 C.C.L.T. (2d) 247, 42 C.P.C. (4th) 26 (Ont. C.A.); Nesbitt Burns Inc. v. Canada Trustco Mortgage (2000), 2000 5681 (ON CA), 131 O.A.C. 85 (C.A.); S. (R.) v. H. (R.) (2000), 2000 17038 (ON CA), 52 O.R. (3d) 152, 195 D.L.R. (4th) 345, 19 R.F.L. (5th) 383, 7 C.P.C. (5th) 32 (C.A.); V.K. Mason Construction Ltd. v. Canadian General Insurance Group Ltd. (1998), 1998 14615 (ON CA), 42 O.R. (3d) 618, 42 C.L.R. (2d) 241 (C.A.), quashing (1998), 40 C.L.R. (2d) 237 (Ont. Gen. Div.); Whalen v. Hillier (2001), 2001 24070 (ON CA), 53 O.R. (3d) 550, 10 M.V.R. (4th) 243, 5 C.P.C. (5th) 58 (C.A.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), (2), 19(1)(b) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 62.02(1)

Barnet H. Kussner, for respondents/defendants (Moving Parties). Leonard F. Marsello, for appellants/plaintiffs (Responding Parties). [page286]

1Endorsement of CRONK J.A.: -- This motion for directions by the respondents/defendants (the "Moving Parties") concerns the proper appeal route or routes to be followed in connection with an appeal by the appellants/plaintiffs (the "Responding Parties") from the order of Justice N. Borkovich dated March 22, 2002, by which summary judgment was granted in favour of the Moving Parties and the Responding Parties' cross-motion for summary judgment on part of their claim and their action in its entirety were dismissed.

I. The Facts

I. The Facts

2The Moving Parties brought a summary judgment motion in the action. The Responding Parties brought a cross-motion for summary judgment on part of their claim. Both summary judgment motions were heard together by the motions judge over nine full days, resulting in the motions judge's order dated March 22, 2002.

3The Responding Parties appeal to this court from that part of the motions judge's order granting the Moving Parties' motion for summary judgment and dismissing the action in its entirety. They have also moved before the Superior Court of Justice for an order granting them leave to appeal to the Divisional Court from that portion of the motions judge's order by which their cross-motion for partial summary judgment was dismissed.

4On this motion for directions, the Moving Parties seek a determination that this court has jurisdiction to hear and dispose of all matters which were before the motions judge, including all matters at issue on the Responding Parties' motion for summary judgment. If that determination is made, as urged by the Moving Parties, the Responding Parties' motion in the Superior Court of Justice for leave to appeal to the Divisional Court would be misconceived. Further, as alternative relief on this motion, the Moving Parties seek an order directing that the appeal pending before this court be expedited and that it be heard and disposed of prior to the Responding Parties' motion for leave to appeal to the Divisional Court.

5There is no dispute that it is in the interests of the parties, and judicial economy, that the Responding Parties' appeal from the order of the motions judge, in its entirety, be heard in one forum. The Responding Parties are content to appeal the order of the motions judge, in its entirety, to this court. However, they are concerned that leave to appeal may be required from a judge of the Superior Court of Justice concerning that part of the motions judge's order whereby their cross-motion for partial summary judgment was dismissed. [page287]

6The Moving Parties declined, as they are entitled to do, to consent to the Responding Parties' motion for leave to appeal to the Divisional Court. If such consent was forthcoming, and if leave to appeal be granted, the parties would then be in a position to apply under s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 for an order that this court also hear and determine the Responding Parties' appeal to the Divisional Court. That option is not available under s. 6(2) absent the prior granting of leave to appeal to the Divisional Court.

7As an alternative procedural approach, the Moving Parties proposed that the parties agree that the Responding Parties' motion for leave to appeal to the Divisional Court be held in abeyance pending determination of their appeal to this court. The reasoning behind that proposal was that if the appeal to this court is dismissed, that outcome effectively would dispose of all matters at issue between the parties subject only to the Responding Parties' right to seek leave to appeal to the Supreme Court of Canada from the decision of this court. Under that scenario, the Responding Parties' motion for leave to appeal to the Divisional Court would be withdrawn or abandoned, as moot. The Responding Parties, however, as is their right, did not agree to that proposal.

8The Moving Parties argue that this court has jurisdiction to hear and determine all matters which were before the motions judge, including all matters at issue on the Responding Parties' cross-motion for partial summary judgment, because the order of the motions judge is final in the sense that it is dispositive of all matters at issue in the action. The Moving Parties assert, therefore, that the Responding Parties are improperly pursuing two separate appeal routes by initiating an appeal before this court and by moving before the Superior Court of Justice for leave to appeal to the Divisional Court.

II. Analysis

II. Analysis

9It is well established that an order that finally determines the issues in a proceeding is a final order, an appeal from which lies to this court under s. 6(1)(b) of the Courts of Justice Act. In contrast, an interlocutory order is one which does not determine the substantive rights of the parties but leaves them to be resolved by subsequent adjudication. (See S. (R.) v. H. (R.) (2000), 2000 17038 (ON CA), 52 O.R. (3d) 152, 195 D.L.R. (4th) 345 (C.A.).) However, the determination of whether an order is final or interlocutory is sometimes made with great difficulty. Here, the motions judge made one order, dealing with both summary judgment motions. That portion of his order which concerns the Responding Parties'[page288] cross- motion for partial summary judgment does not finally dispose of all of the Responding Parties' claims in the action. In contrast, that portion of his order dealing with the Moving Parties' motion for summary judgment concerns all of the issues in the action. His further order that the Responding Parties' action be dismissed in its entirety flowed from his conclusion that summary judgment should be granted to the Moving Parties.

10In Albert v. Spiegel (1993), 17 C.P.C. (3d) 90 (Ont. C.A.), the plaintiff moved before this court for leave to appeal from an order dismissing his motion for summary judgment. A cross-motion by the defendant for summary judgment was successful, and resulted in a judgment dismissing the plaintiff's action. The plaintiff appealed from the latter judgment, as of right, to this court. At issue was this court's jurisdiction to hear the proposed appeal from the order dismissing the plaintiff's motion for summary judgment, together with the plaintiff's motion for leave to appeal. Morden A.C.J.O. stated (at p. 91 C.P.C.):

The order sought to be appealed is interlocutory and, by virtue of s. 19(1)(b) of the Courts of Justice Act, an appeal lies from it to the Divisional Court with leave as provided in the rules of the court. Under r. 62.02(1) leave to appeal this provision must be obtained from a judge of the General Division other than the judge who made the interlocutory order.

In our view, it cannot be said that an appeal "lies to the Divisional Court", within the meaning of these words in s. 6(2) (of the Courts of Justice Act) applied to the facts of this case, until leave has been granted under s. 19(1)(b).

(See also, Merling v. Southam Inc. (2000), 2000 5621 (ON CA), 183 D.L.R. (4th) 748, 42 C.P.C. (4th) 26 (Ont. C.A.); Nesbitt Burns Inc. v. Canada Trustco Mortgage (2000), 2000 5681 (ON CA), 131 O.A.C. 85 (C.A.); and V.K. Mason Construction Ltd. v. Canadian General Insurance Group Ltd. (1998), 1998 14615 (ON CA), 42 O.R. (3d) 618, 42 C.L.R. (2d) 241 (C.A.).)

11The facts in Albert v. Spiegel are clearly analogous to those in this case. Based on Albert v. Spiegel, an order dismissing a motion for summary judgment is an interlocutory order from which an appeal to the Divisional Court lies, with leave.

12The Moving Parties rely on the subsequent decisions of this court in Whalen v. Hillier (2001), 2001 24070 (ON CA), 53 O.R. (3d) 550, 5 C.P.C. (5th) 58 (C.A.) and Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 2000 16991 (ON CA), 51 O.R. (3d) 641, 195 D.L.R. (4th) 135 (C.A.) in support of their argument that where there are motions and cross-motions for summary judgment, and one motion is granted with the result that the other motion is dismissed, appeals on both motions properly lie to this court. In my view, for the reasons that follow, neither of those cases displaces the rule established in Albert v. Spiegel. [page289]

13First, Whalen v. Hillier did not involve a challenge of a decision not to grant summary judgment. The issue in that case was whether a motions judge had jurisdiction to grant summary judgment in favour of a party responding to a motion for summary judgment brought by the party opposite. No doubt because the issue in Whalen v. Hillier was different from the issue in Albert v. Spiegel, no mention was made in Whalen v. Hillier of the decision in Albert v. Spiegel.

14Similarly, no mention was made of Albert v. Spiegel in Chippewas of Sarnia Band v. Canada (Attorney General), which involved numerous appeals and cross-appeals, including appeals from orders dismissing motions or cross-motions for summary judgment. The action in the Chippewas case was complex and multi-faceted. The appellate proceedings were the subject of extensive case management. The jurisdiction of this court to hear all of the appeals together was not challenged. Indeed, all parties agreed, given the nature of the judgment under appeal, that none of the appeals and cross-appeals related to interlocutory orders. Given those facts, the decision in the Chippewas case does not assist the Moving Parties.

III. Conclusion

III. Conclusion

15I conclude, therefore, that the decisions in Whalen v. Hillier and in the Chippewas case cannot be regarded as having overruled the decision in Albert v. Spiegel. Until a motion under s. 6(2) of the Courts of Justice Act may properly be brought, this court has no jurisdiction to hear and determine the Responding Parties' appeal from the order of the motions judge dismissing their cross-motion for partial summary judgment. A motion under s. 6(2) may only be brought after leave to appeal to the Divisional Court has been granted, if leave be granted. The Responding Parties have indicated that if they are successful in obtaining leave to appeal to the Divisional Court, they intend to bring a motion under s. 6(2) for an order directing that both appeals be heard together by this court.

16Accordingly, the directions sought by the Moving Parties are denied. I direct that the Responding Parties' appeal to this court from the decision of the motions judge granting summary judgment to the Moving Parties and dismissing the action in its entirety not be heard until final disposition of the Responding Parties' motion for leave to appeal to the Divisional Court, or further order of this court. By order dated June 13, 2002, I directed that the time for perfection of the Responding Parties' pending appeal to this court be extended, on consent, to the date which is four months after the date of release of this decision. [page290] Should variation of that four-month period be required to ensure that the Responding Parties' motion for leave to appeal to the Divisional Court is determined prior to argument of the appeal pending before this court, either party may seek such variation by further motion to this court. This is not a proper case for an award of costs and I decline to order same.