Court File and Parties

CITATION: Leone v. University of Toronto Outing Club, 2007 ONCA 323

DATE: 20070501

DOCKET: M34744-C46158

COURT OF APPEAL FOR ONTARIO

DOHERTY, FELDMAN and GILLESE JJ.A.

BETWEEN:

JAMES LEONE

Plaintiff (Respondent)

and

UNIVERSITY OF TORONTO OUTING CLUB, KOLAPORE UPLANDS WILDERNESS SKI TRAILS COMMITTEE, BRUCE GREY TRAILS NETWORK, THE CORPORATION OF THE TOWN OF BLUE MOUNTAINS and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTER OF GOVERNMENT SERVICES

Defendants (Appellants)

Counsel: Shannon Parsons for the appellants Susan E. Healey for the respondent

Heard and orally released: April 25, 2007

On appeal from the order of Justice John Jenkins of the Superior Court of Justice dated September 25, 2006, dismissing the appellants’ motion for summary judgment.

ENDORSEMENT

[1] The parties are now agreed that the order under appeal is not final and the appeal must be quashed.

[2] An order dismissing a motion for summary judgment brought under Rule 20 is not a final order in that it determines only that there are genuine issues for trial. Consequently, any apparent findings of fact made by this motion judge in the course of his reasons for dismissing the motion for summary judgment do not support a res judicata or issue estoppel claim in the subsequent proceedings: see V.K. Mason Construction Ltd. v. Canadian General Insurance Group Limited (1998), 42 O.R. (3d) 618 (C.A.).

[3] We note that Rule 20.05(1) and (2) do contemplate, in the circumstances described in Rule 20.05(1), findings of fact even where a motion for summary judgment is dismissed. If a motion judge proposes to make findings of fact under Rule 20.05(1), he or she should expressly invoke that provision and the order should refer to that provision.

[4] The appeal is quashed as having been brought without jurisdiction. In all of the circumstances which were thoroughly reviewed for us by counsel, we think there should be no costs.

“Doherty J.A.”

“K. Feldman J.A.”

“E.E. Gillese J.A.”