Court File and Parties

Citation: 3574423 Canada Inc. v. Imvescor Restaurants Inc., 2011 ONCA 800

Date: 2011-12-16

Docket: M40648-C53641

Court of Appeal for Ontario

O’Connor A.C.J.O., Laskin and Cronk JJ.A.

Between:

3574423 Canada Inc., Redwood Grille – Orlando, L.L.C., Unique Hospitality, L.L.C., George Bozikis and Spiro Bozikis

Appellants

and

Imvescor Restaurants Inc. and PDM Royalties Limited Partnership

Respondents

Counsel:

Ian N. Roher and David S. Altshuller, for the appellants/responding parties

Randy C. Sutton and Rahool P. Agarwal, for the respondents/moving parties

Heard and released orally: December 12, 2011

ENDORSEMENT

[1] The motion judge concluded that as a pure question of law s. 16.2 of the franchise agreement is not ambiguous (para. 53). The respondents concede that this finding is final. Thus, it is properly appealable to this court.

[2] The balance of the matters raised in the proposed fresh amended notice of appeal are interlocutory. Having disposed of the question of law referred to above, the motion judge made it clear that he was considering the remaining issues pursuant to the appellants’ motion for partial summary judgment under Rule 20.

[3] The motion judge dismissed the Rule 20 motion on the basis the appellants failed to show that there were no genuine issues requiring a trial. His findings on the motion related only to the “genuine issue requiring a trial” test. He did not finally determine any of the issues that formed part of the Rule 20 motion.

[4] Thus, none of the motion judge’s findings, other than the one referred to in para. 1 above, may form the basis for a plea of res judicata should this matter proceed to trial.

[5] The motion is granted.

[6] Costs are fixed in the amount of $5,000, inclusive of disbursements and applicable taxes.

“D. O’Connor A.C.J.O.”

“John I. Laskin J.A.”

“E.A. Cronk J.A.”