DATE: 20050318

DOCKET: M32123 (C42823)

COURT OF APPEAL FOR ONTARIO

RE:

DON MOSELEY-WILLIAMS (Plaintiff (Respondent)) – and – HANSLER INDUSTRIES LTD. (Defendant (Appellant))

BEFORE:

McMURTRY C.J.O., ARMSTRONG and LANG JJ.A.

COUNSEL:

Bonnie Roberts and Melanie Hopper

for the appellant

J. Sebastian Winny

for the respondent

HEARD & RELEASED ORALLY:

March 11, 2005

On appeal from the order of Justice M. C. Cullity of the Superior Court of Justice dated December 2, 2004.

E N D O R S E M E N T

[1] In our view, the order of Justice Cullity dismissing the motion for summary judgment is interlocutory. See V. K. Mason v. Canadian General Insurance Group Ltd. (1998), 1998 14615 (ON CA), 42 O.R. (3d) 618 (C.A.). While the reasons of the motion court judge discuss, in depth, a question of law related to absolute privilege attaching to a lawyer’s letter, the order simply dismisses the application for summary judgment and no more. Justice Cullity was careful to expressly confine his order to the said dismissal. In our view, his reasons are not binding on the trial judge although they may be referred to as an authority on the legal issue.

[2] We also note that there may be issues of fact that arise at trial which the court must consider in concluding whether the defence of absolute privilege applies in this case.

[3] The appeal is therefore quashed.

[4] The respondent shall have his costs of the motion fixed in the amount of $3,500 inclusive of disbursements and Goods and Services Tax.

“Roy McMurtry C.J.O.”

“Robert P. Armstrong J.A.”

“Susan E. Lang J.A.”