DATE: 20040130

DOCKET: M30682 (C40447)

COURT OF APPEAL FOR ONTARIO

RE: DAVID POLOWIN REAL ESTATE LTD. (Plaintiff) (Respondent) (Moving Party)– and – THE DOMINION OF CANADA GENERAL INSURANCE COMPANY (Defendant) (Appellant) (Responding Party)

BEFORE: WEILER, MOLDAVER and ARMSTRONG JJ.A.

COUNSEL: Michael McGowan,

M. Paul Downs and

Gabrielle Pop-Lazic

for the moving party

John A. Campion

and Paul J. Martin

for the responding party

HEARD: January 8, 2004

RELEASED ORALLY: January 8, 2004

On motion to quash the appeal of the order of Justice Roland J. Haines of the Superior Court of Justice dated July 14, 2003.

DOCKET: M30683 (C40500 & C40910)

AND RE: BOYD JOHNSTON (Plaintiff) (Appellant) (Moving Party)

– and – FEDERATION INSURANCE COMPANY OF CANADA (Defendant) (Respondent) (Responding Party)

BEFORE: WEILER, MOLDAVER and ARMSTRONG JJ.A.

COUNSEL: Michael McGowan

M. Paul Downs and

Gabrielle Pop-Lazic

for the moving party

Alan L. W. D'Silva

and Bradley M. Davis

for the responding party

HEARD: January 8, 2004

RELEASED ORALLY: January 8, 2004

On motion to quash the appeal of the order of Justice Roland J. Haines of the Superior Court of Justice dated July 14, 2003, and the cross‑appeal of the order of Justice Haines dated October 21, 2003.

DOCKET: M30685 (C40499 & C40911)

AND RE: SHARON FARQUHAR (Plaintiff) (Respondent) (Moving Party)

– and – LIBERTY MUTUAL INSURANCE COMPANY (Defendant) (Appellant) (Responding Party)

BEFORE: WEILER, MOLDAVER and ARMSTRONG JJ.A.

COUNSEL: Michael McGowan

M. Paul Downs and

Gabrielle Pop-Lazic

for the moving party

Alan L. W. D'Silva

and Bradley M. Davis

for the responding party

HEARD: January 8, 2004

RELEASED ORALLY: January 8, 2004

On motion to quash the appeal of the order of Justice Roland J. Haines of the Superior Court of Justice dated July 14, 2003, and the cross‑appeal of the order of Justice Haines dated October 21, 2003.

DOCKET: M30686 (C40501)

AND RE: SANDY BIG CANOE (Plaintiff) (Respondent) (Moving Party)

– and – THE ECONOMICAL INSURANCE GROUP (Defendant) (Appellant) (Responding Party)

BEFORE: WEILER, MOLDAVER and ARMSTRONG JJ.A.

COUNSEL: Michael McGowan

M. Paul Downs and

Gabrielle Pop-Lazic

for the moving party

Alan L. W. D'Silva

and Bradley M. Davis

for the responding party

HEARD: January 8, 2004

RELEASED ORALLY: January 8, 2004

On motion to quash the appeal of the order of Justice Roland J. Haines of the Superior Court of Justice dated July 14, 2003.

DOCKET: M30687 (C40475)

AND RE: A. GORDON SHAW (Plaintiff) (Respondent) (Moving Party)

– and – ZURICH CANADA (Defendant) (Appellant) (Responding Party)

BEFORE: WEILER, MOLDAVER and ARMSTRONG JJ.A.

COUNSEL: Michael McGowan

M. Paul Downs and

Gabrielle Pop-Lazic

for the moving party

Lisa La Horey

for the responding party

HEARD: January 8, 2004

RELEASED ORALLY: January 8, 2004

On motion to quash the appeal of the order of Justice Roland J. Haines of the Superior Court of Justice dated July 14, 2003.

DOCKET: M30688 (C40489)

AND RE: ROBERT WOODS, Executor of the Estate of WAYNE ROBERT WOODS (Plaintiff) (Respondent) (Moving Party)

– and – ING HALIFAX INSURANCE COMPANY (Defendant) (Appellant) (Responding Party)

BEFORE: WEILER, MOLDAVER and ARMSTRONG JJ.A.

COUNSEL: Michael McGowan

M. Paul Downs and

Gabrielle Pop-Lazic

for the moving party

Paul J. Martin

and Annie M.K. Finn

for the responding party

HEARD: January 8, 2004

RELEASED ORALLY: January 8, 2004

On motion to quash the appeal of the order of Justice Roland J. Haines of the Superior Court of Justice dated July 14, 2003.

DOCKET: M30689 (C40490)

AND RE: LAURIER DUCLOS (Plaintiff) (Respondent) (Moving Party)

– and – THE WAWANESA MUTUAL INSURANCE COMPANY (Defendant) (Appellant) (Responding Party)

BEFORE: WEILER, MOLDAVER and ARMSTRONG JJ.A.

COUNSEL: Michael McGowan

M. Paul Downs and

Gabrielle Pop-Lazic

for the moving party

Paul J. Martin

and Annie M.K. Finn

for the responding party

HEARD: January 8, 2004

RELEASED ORALLY: January 8, 2004

On motion to quash the appeal of the order of Justice Roland J. Haines of the Superior Court of Justice dated July 14, 2003.

E N D O R S E M E N T

1The plaintiffs in the class action sought to raise three issues on these motions: 1) Whether the orders in question were final or interlocutory; 2) whether a respondent can cross appeal from an interlocutory order to the Court of Appeal; 3) whether the appeals were devoid of merit.

2In accordance with the recent practice direction of this court we declined to hear the third issue as that is now to be heard at the time scheduled for the appeal itself.

3With respect to whether the orders in question are final or interlocutory, the notices of motion asked the court to deal with a question of law, namely that the claims disclose no cause of action. They were rule 20 and rule 21 motions that were heard together. The court dismissed the motions. The operative part of the order reads:

This Court Orders and adjudges that in interpreting the Insurance Act, R.S.O. c. I.8 and the regulations made thereto, this Court is bound by the decision in the McNaughton case and the motion is therefore dismissed.

4The plaintiffs submit that because the order only refers to the decision in McNaughton Automotive Ltd. v. Co-operators General Insurance Co. (2000), 2000 22409 (ON SC), 50 O.R. (3d) 300 the order is not a final order. We disagree. The order of the motions judge indicates that the court was bound by McNaughton in the interpretation of the Insurance Act. His reasons, to which this court is entitled to have regard in order to ascertain the scope of the decision, support this conclusion.

5The orders are also not just a declaration that the principle of stare decisis applies because there is an order dismissing the motions. As stated in S (R) v. H. (R) (2000), 2000 17038 (ON CA), 52 O.R. (3d) 152 (C.A.) 159- 160:

…an order dismissing a motion for summary judgment on a question of law, where the only genuine issue is the question of law (as provided for in rule 20.04(4))should probably be regarded as giving rise to a res judicata and, hence, a final order.

6The effect of the order of the motions judge was to preclude the defendants from contesting that they were not entitled to deduct the deductible portion of an insurance policy and claim salvage in the cases before him. Thus, the orders are final.

7Accordingly the motion to quash on that basis is dismissed.

8In the circumstances it is not necessary to deal with the second issue.

9The Court will entertain written submissions with respect to costs in the event that counsel cannot agree on them.