R.S. v. R.H. [Indexed as: S. (R.) v. H. (R.)]

52 O.R. (3d) 152

[2000] O.J. No. 4843

Docket No. C34575

Court of Appeal for Ontario

Morden, Rosenberg and Simmons JJ.A.

December 22, 2000

Appeal--Final or interlocutory order--Order dismissing motion under rule 21.01(1)(b) of Rules of Civil Procedure to strike out claim as disclosing no reasonable cause of action is interlocutory--Order appealable to Divisional Court with leave --Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)(b).

Family law--Support--Spousal support--Former partner in same- sex common law relationship which ended in 1993 bringing action claiming spousal support among other forms of relief --Defendant bringing motion for order pursuant to rule 21.01(1)(b) of Rules of Civil Procedure to strike out support claim as disclosing no reasonable cause of action on basis that s. 29 of Family Law Act having no retroactive application --Motion dismissed on ground that legislation had retroactive application to facts pleaded--Order appealable to Divisional Court with leave--Family Law Act, R.S.O. 1990, c. F.3, s. 29--Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)(b).

The parties lived together in a same-sex relationship for 13 years. The relationship ended in 1993. The plaintiff brought an action making several property claims and also seeking spousal support. The defendant brought a motion for an order pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure striking out the claim for spousal support on the ground that s. 29 of the Family Law Act, as enacted by S.O. 1999, c. 6, s. 25(2), which came into force in November 1999, had no retroactive application and could not apply to a relationship that ended in 1993. The motions judge dismissed the motion. She specifically stated that the legislation had retroactive application to the facts pleaded. The defendant appealed to the Court of Appeal. The plaintiff brought a motion to quash the appeal on the grounds that the order was not a final order as required by s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, but rather an interlocutory order and appealable to the

Divisional Court with leave under s. 19(1)(b) of the Courts of Justice Act.

Held, the motion should be granted.

Orders dismissing a motion under rule 21.01(1)(b) are interlocutory. In light of the nature of the jurisdiction conferred on judges by rule 21.01(1)(b), it is reasonable to think that, regardless of the reasons given for dismissing the motion, the judge does not have the power to make a final order under that provision. The classification of an order dismissing a motion under rule 21.01(1)(b) as final or interlocutory should not turn on the degree of forcefulness of the reasons for the conclusion that there is "no reasonable cause of action or defence" disclosed in the pleading.

MOTION to quash an appeal from an order of Benotto J. (2000), 2000 22391 (ON SC), 49 O.R. (3d) 451 (S.C.J.).

Albert v. Spiegel (1993), 17 C.P.C. (3d) 90 (Ont. C.A.); Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322, 45 M.V.R. (2d) 319 (C.A.), distd Four Embarcadero Center Venture v. Mr. Greenjeans Corp. (1988), 1988 4578 (ON CA), 65 O.R. (2d) 160 (C.A.), revg (1988), 1988 4610 (ON SC), 64 O.R. (2d) 746, 26 C.P.C. (2d) 248 (H.C.J.); Sheppard v. Sheppard (1922), 1922 604 (ON CA), 22 O.W.N. 97, 69 D.L.R. 707 (C.A.), affg (1922), 1922 524 (ON SC), 21 O.W.N. 378, 51 O.L.R. 520, 69 D.L.R. 570 (H.C.J.); 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.), consd Other cases referred to Abramovic v. Canadian Pacific Ltd. (1991), 1991 7248 (ON CA), 6 O.R. (3d) 1, 85 D.L.R. (4th) 587, 39 C.C.E.L. 195 (C.A.) [Leave to appeal to S.C.C. refused (1992), 8 O.R. (3d) xiii]; Bozson v. Altrincham Urban District Council, [1903] 1 K.B. 547, 72 L.J.K.B. 271, 51 W.R. 337, 67 J.P. 397, 1 L.G.R. 639, 19 T.L.R. 266, 47 Sol. Jo. 316 (C.A.); Brouwer v. Inkameep Vineyards Ltd. (1987), 1987 2576 (BC CA), 17 B.C.L.R. (2d) 253 (C.A.); Canadian Pacific Airlines Ltd. v. British Columbia, 1989 94 (SCC), [1989] 1 S.C.R. 1133, 36 B.C.L.R. (2d) 185, 59 D.L.R. (4th) 218, 96 N.R. 1, [1989] 4 W.W.R. 137, supp. reasons 1989 3 (SCC), [1989] 2 S.C.R. 1067, 63 D.L.R. (4th) 768n, 102 N.R. 75, revg in part (1985), 1985 227 (BC CA), 67 B.C.L.R. 1, 21 D.L.R. (4th) 685, [1986] 1 W.W.R. 342 (C.A.); Diamond v. Western Realty Co., 1924 2 (SCC), [1924] S.C.R. 308, [1924] 2 D.L.R. 922; Hamelin v. Davis (1996), 1996 3366 (BC CA), 18 B.C.L.R. (3d) 85, [1996] 6 W.W.R. 318 (C.A.), supp. reasons (1996), 1996 8356 (BC CA), 18 B.C.L.R. (3d) 112, [1996] 6 W.W.R. 341 (C.A.); Hanson v. Bank of Nova Scotia (1994), 1994 573 (ON CA), 19 O.R. (3d) 142 (C.A.); Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, [1932] 4 D.L.R. 580 (C.A.); Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105 (sub nom. Hunt v. T & N plc); Laurentian Plaza Corp. v. Martin (1992), 1992 7561 (ON CA), 7 O.R. (3d) 111, 89 D.L.R. (4th) 50, 6 C.P.C. (3d) 381 (C.A.); M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3, 43 O.R. (3d) 254n, 171 D.L.R. (4th) 577, 238 N.R. 179, 62 C.R.R. (2d) 1, 46 R.F.L. (4th) 32; Noel Developments Ltd. v. Metro-Can Construction (H.S.) Ltd. (1997), 1997 4123 (BC CA), 96 B.C.A.C. 206, 155 W.A.C. 206 (C.A.); Odhavji Estate v. Woodhouse (December 15, 2000) (Ont. C.A.); R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 2731 (ON CA), 5 O.R. (3d) 778 (C.A.); Smerchanski v. Lewis (1980), 1980 1699 (ON CA), 30 O.R. (2d) 370, 117 D.L.R. (3d) 716, 18 C.P.C. 29 (C.A.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 6(2), 19(1)(b), 110 Family Law Act, R.S.O. 1990, c. F.3, s. 29 [en. S.O. 1999, c. 6, s. 25(2)] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 20.04(4), 21.01(1)(a), (b), 62.02(2) Authorities referred to Holmested and Watson, Ontario Civil Procedure, Vol. 5

Robert Halpern and Andrea Himel, for respondent. Dee Smith, for appellant.

The judgment of the court was delivered by

[1] MORDEN J.A.:--The respondent in this appeal, the plaintiff in the action, moves to quash the defendant's appeal from an order of Benotto J. that dismissed his motion for "an order pursuant to rule 21.01(1)(d) of the [Rules of Civil Procedure R.R.O. 1990, Reg. 194] striking out those portions of the plaintiff's statement of claim in this matter as they relate to a claim for 'spousal' support, as disclosing no reasonable cause of action". (The parties are agreed that the "21.01(1)(d)" should read "21.01(1)(b)"). The ground of the motion is that no appeal lies to this court because the order is not a "final order" as required by s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, but is an interlocutory order and appealable to the Divisional Court with leave under s. 19(1)(b) of the Courts of Justice Act.

[2] The facts, for the purposes of the motion before Benotto J., are those pleaded in the statement of claim. They may be summarized briefly. The plaintiff and the defendant are both 39-year-old male persons. They resided together in a relationship equivalent to marriage for approximately 13 years until about July of 1993, when the defendant told the plaintiff that, as far as he was concerned, the relationship was finished. The plaintiff had provided many kinds of services for the defendant of a domestic and business nature. The plaintiff earned about $41,000 a year and the defendant about $500,000 a year. The plaintiff had no means of attaining self-sufficiency.

[3] In the prayer for relief in the statement of claim, the plaintiff makes several property claims and also claims "interim and permanent payments of $8,500 monthly to continue during the lifetime of the Plaintiff".

[4] The statement of claim is dated May 6, 1994. The action was held in abeyance pending the decision of the Supreme Court of Canada in M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3, 171 D.L.R. (4th) 577, which held, on May 20, 1999, that s. 29 of the Family Law Act, R.S.O. 1990, c. F.3 was of no force and effect to the extent that it excluded same-sex couples from the definition of spouse.

[5] As indicated, the defendant moved to strike out the portions of the statement of claim pertaining to spousal relief as disclosing no reasonable cause of action. The grounds of the motion are not set forth in the notice of motion, which is in the case management motion form (Form 2) under the Toronto Family Case Management Rules. It is clear, however, that the motion was based on the submission that s. 29 of the Family Law Act, as enacted by S.O. 1999, c. 6, s. 25(2) and which came into force on November 30, 1999, has no retroactive application and therefore could not apply to a relationship that ended in 1993.

[6] Benotto J. dismissed the motion. She gave reasons expressing her opinion, without reservation, that the legislation had retroactive application to the facts pleaded. The final paragraph in her reasons on the issue before her reads [at p. 455 O.R.]:

The parties have agreed that the defendant's test on this motion is set out in Doe v. Metropolitan Toronto (Municipality) (Commissioner of Police) (1990), 74 O.R. (2d) 225, 1990 6611 (ON SC), 72 D.L.R. (4th) 580 (Div. Ct.). He must establish that there is no cause of action. The defendant has not met the burden and so the motion is dismissed.

The terms of the formal order read: "THIS COURT ORDERS that [the motion] . . . is hereby dismissed".

[7] Rule 21.01(1) reads:

21.01(1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

As I have indicated, the order in question in this motion was made under rule 21.01(1)(b).

[8] The test of whether the order of Benotto J. is final or interlocutory is set forth in Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675 at p. 678, [1932] 4 D.L.R. 580 (C.A.):

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties--the very subject matter of the litigation, but only some matter collateral.

and at p. 680, quoting from Bozson v. Altrincham Urban District Council, [1903] 1 K.B. 547 at pp. 548-49, 67 J.P. 397 (C.A.):

Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order . . .

[9] There is little reported case law on the question but what I have been able to find supports the conclusion that orders dismissing a motion under rule 21.01(1)(b) are interlocutory: Sheppard v. Sheppard (1922), 1922 604 (ON CA), 22 O.W.N. 97, 69 D.L.R. 707 (C.A.); Four Embarcadero Center Venture v. Mr. Greenjeans Corp. (1988), 1988 4578 (ON CA), 65 O.R. (2d) 160 (C.A.); Brouwer v. Inkameep Vineyards Ltd. (1987), 1987 2576 (BC CA), 17 B.C.L.R. (2d) 253 (C.A.); Hamelin v. Davis, 1996 3366 (BC CA), [1996] 6 W.W.R. 318 at p. 324, 18 B.C.L.R. (3d) 85 (C.A.); and Noel Developments Ltd. v. Metro-Can Construction (H.S.) Ltd. (1997), 1997 4123 (BC CA), 96 B.C.A.C. 206, 155 W.A.C. 206 (C.A.).5

[10] It may be that the relative paucity in the reported case law is a reflection of a generally held and undisputed view, based on principle, that these orders are interlocutory. In Smerchanski v. Lewis (1980), 1980 1699 (ON CA), 30 O.R. (2d) 370, 117 D.L.R. (3d) 716 (C.A.), Arnup J.A. observed at p. 374 O.R.:

It is well-established law that on an application made in an action, the order made may be interlocutory if a certain result is reached but may be final if a different result is reached. Thus an order dismissing an action because the statement of claim discloses no cause of action known to the law is a final order, whereas an order dismissing an application brought for that purpose is interlocutory.

[11] This statement was made in the course of indicating that the case before the court in Smerchanski was different from "the ordinary situation" involving an issue between the parties to an action in that in Smerchanski the issue was between a stranger to the action and one of the parties.

[12] In Volume 5 of Holmested and Watson, Ontario Civil Procedure, the rationale for characterizing dismissal orders in motions under rule 21.01(1)(b) as interlocutory is set forth at p. 62-18 where it is said that, applying the general test in Hendrickson v. Kallio, supra, these orders are interlocutory "because they do not determine the substantive rights of the parties but leave them to be resolved by subsequent adjudication".

[13] The basic question, in light of the foregoing, is whether it is the case that orders dismissing a motion under rule 21.01(1)(b) leave the substantive rights of the parties to be resolved by subsequent adjudication. The question can be asked because it may appear from her reasons for dismissal that the motions judge has given a determinative decision on the substantive right in question that, under the doctrine of res judicata, would be binding on the trial judge: Diamond v. Western Realty Co., 1924 2 (SCC), [1924] S.C.R. 308, [1924] 2 D.L.R. 922. I shall return to this issue later in these reasons after I have given further consideration to the principles relating to motions under rule 21.01(1)(b).

[14] The purpose of rule 21.01(1)(b) is to enable a judge to strike from the pleadings claims and defences that do not, in law, have a chance of succeeding. This is clearly shown in the case law. No pleading should be stricken unless it is "plain and obvious" that it discloses no reasonable cause of action or defence: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321; R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 2731 (ON CA), 5 O.R. (3d) 778 (C.A.); Abramovic v. Canadian Pacific Ltd. (1991), 1991 7248 (ON CA), 6 O.R. (3d) 1, 85 D.L.R. (4th) 587 (C.A.), leave to appeal to Supreme Court of Canada refused (1992), 8 O.R. (3d) xiii; and Hanson v. Bank of Nova Scotia (1994), 1994 573 (ON CA), 19 O.R. (3d) 142 (C.A.). In this context, it is understandable why an order dismissing a motion to strike out a pleading is interlocutory. The matter in issue remains to be decided, one way or the other, at trial.

[15] In light of the nature of the jurisdiction conferred on judges by rule 21.01(1)(b), it is reasonable to think that, regardless of the reasons given for dismissing the motion, the judge does not have the power to make a final order under that provision. In the present case, Benotto J. gave clear reasons for her opinion that the statement of claim disclosed a valid cause of action, and then dismissed the motion on the basis that the defendant had not met the burden of establishing that there was no cause of action.

[16] I do not think that the classification of an order dismissing a motion under rule 21.01(1)(b) as final or interlocutory should turn on the nature of the reasons given for it--more specifically, that it should turn on the degree of forcefulness of the reasons for the conclusion that there is not "no reasonable cause of action or defence" disclosed in the pleading. In some cases this could be difficult to calibrate. In this regard, it is important to recognize the value of clarity respecting the application of rules relating to the determination of appellate jurisdiction: Laurentian Plaza Corp. v. Martin (1992), 1992 7561 (ON CA), 7 O.R. (3d) 111 at p. 116, 89 D.L.R. (4th) 50 (C.A.).

[17] In the present case, the appellant, the responding party in this motion, relies on the decision of this court in Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322, 45 M.V.R. (2d) 319 (C.A.) in support of his position that the order is a final one. In Ball the defendant had moved under rule 21.01(1)(a) for a determination before trial of a question of law raised by the pleadings relating to the application of a limitation period provision. The motions court judge decided the question against the defendant. This court held that the judge's order was a final one. At p. 324 O.R. this court said:

The effect of the order of Daudlin J. was to preclude the defendant's entitlement to raise thereafter, as a defence to this action, the plaintiff's failure to sue within the limitation period prescribed by the Highway Traffic Act. While that order did not finally dispose of the rights of the parties to the litigation, it did, subject to appeal therefrom, finally dispose of the issue raised by that defence, and thereby deprived the defendant of a substantive right which could be determinative of the entire action. Viewed from that perspective, the order of Daudlin J. was a final order within the contemplation of the decisions of this court in Bell v. Smith (May 5, 1969, unreported); Frederick v. Aviation & General Insurance Co., 1966 271 (ON CA), [1966] 2 O.R. 356; and Wigle v. Allstate Insurance Co. of Canada (1984), 49 O.R. (2d) 101, 1984 45 (ON CA), 14 D.L.R. (4th) 404.

Accordingly we are of the view that the defendant's appeal from the order of Daudlin J. is properly before this court.

The formal order of the motions judge contained in the appeal book in that case is as follows:

1. THIS COURT DETERMINES that the action herein is not barred by reason of the two year limitation period as provided in Section 180(1) of the Highway Traffic Act, R.S.O. 1980, chapter 198 as amended.

[18] In my view Ball v. Donais is distinguishable from the present case. Both the terms of rule 21.01(1)(a), under which the order had been made, and the terms of the order itself, which were in accord with the purpose of rule 21.01(1)(a), indicate that the order was a final one. The order finally determined, subject to appeal, that the defendant's limitation period defence was not open to him. In the case before us, although Benotto J. gave very clear reasons for her conclusion that the defendant had not met the burden of establishing that the plaintiff did not have a cause of action, she did not finally resolve the question. As I have said, the purpose of rule 21.01(1)(b) is to enable claims and defences that do not, in law, have a chance of succeeding, to be stricken from the pleadings.

[19] This reasoning is supported by the decisions of this court in Sheppard v. Sheppard, supra, and Four Embarcadero Center Venture v. Mr. Greenjeans Corp., supra. In each of these cases the judge, on a motion to strike out the statement of claim, had given unequivocal reasons why the challenged actions were maintainable: Sheppard (1922), 1922 524 (ON SC), 21 O.W.N. 378, 69 D.L.R. 570 (H.C.J.) and Four Embarcadero (1988), 1988 4610 (ON SC), 64 O.R. (2d) 746, 26 C.P.C. (2d) 248 (H.C.J.). It is implicit in the decision of this court, in each case, that it did not regard the reasons as giving rise to a res judicata. If it had so regarded them, it would not have held the orders in question to be interlocutory.

[20] My reasoning with respect to rule 21.01(1)(b) accords with the approach of Finlayson J.A. in V.K. Mason Construction Ltd. v. Canadian General Insurance Group Ltd. (1998), 1998 14615 (ON CA), 42 O.R. (3d) 618 at p. 624, 42 C.L.R. (2d) 241 (C.A.) on the issue whether the dismissal of a motion for summary judgment under Rule 20 was a final order:

As to res judicata or issue estoppel in the context of a motion for summary judgment that is dismissed, I do not think that the motions court judge's reasons should be taken as anything more than his explanation for finding that there is a genuine issue for trial. It is the finding that there is a genuine issue for trial that is res judicata.

I believe that the best approach in the present case is therefore to look at the legal process that Rule 20 creates and determine if the process is intended to result in final determinations regardless of the outcome of the motion for summary judgment.

[21] I should note that in Air Canada v. British Columbia [Canadian Pacific Airlines Ltd. v. British Columbia], 1985 227 (BC CA), [1986] 1 W.W.R. 342 at p. 357, 67 B.C.L.R. 1 (C.A.), affd 1989 94 (SCC), [1989] 1 S.C.R. 1133 at p. 1156, 36 B.C.L.R. (2d) 185, it was held that where a party singled out an issue for resolution on a motion for summary judgment, the resolution of that issue against the party gave rise to issue estoppel. In the same vein, 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.

[22] Before concluding these reasons, I should address a submission made by the respondent, moving party, that this court make an order that the appellant be prohibited from bringing a motion for leave to appeal to the Divisional Court "as the limitation period for so doing has expired". As we said during the hearing, this court does not have the jurisdiction to make such an order. The time for moving for leave to appeal (the "limitation period") is set forth in rule 62.02(2) and that provision empowers the judge hearing the motion to extend the time. This case is not like Albert v. Spiegel (1993), 17 C.P.C. (3d) 90 (Ont. C.A.), in which a motion for leave to appeal was wrongly made in this court and it was transferred to a judge of the General Division under s. 110 of the Courts of Justice Act.

[23] For the foregoing reasons, I would quash this appeal, with costs.

Motion granted.