Ashak et al. v. Her Majesty the Queen in Right of Ontario,as represented by the Director for the Family Responsibility Office*

[Indexed as: Ashak v. Ontario (Family Responsibility Office)]

Ontario Reports

Court of Appeal for Ontario,

Simmons, Hoy and Strathy JJ.A.

June 6, 2013

115 O.R. (3d) 401 | 2013 ONCA 375

Case Summary

• Vous trouverez la traduction française à la p. 408, post.

Appeal — Jurisdiction — Final or interlocutory order — Motion judge indicating in his reasons for dismissing defendant's summary judgment motion that he was satisfied that plaintiff had established prima facie duty of care in relation to her negligence claim — Motion judge not referring to power under rule 20.04(4) to determine question of law and grant judgment accordingly — Formal order merely stating that motion was dismissed — Motion judge's determination that defendant owed plaintiff prima facie duty of care not binding on trial judge — Order not final — Defendant's appeal to Court of Appeal dismissed for lack of jurisdiction — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.04(4).

In his reasons for dismissing a motion by the defendant for summary judgment, the motion judge indicated that he was satisfied that the plaintiff had established a prima facie duty of care in relation to her negligence claim. The formal order stated simply that the motion was dismissed. The defendant appealed to the Court of Appeal.

Held, the appeal should be dismissed for lack of jurisdiction.

If a motion judge dismissing a motion for summary judgment proposes to exercise the power under rule 20.04(4) of the Rules of Civil Procedure to make a binding determination of law, the motion judge should specifically invoke the rule, and reference to the rule, as well as the legal determination made, should form part of the formal order. In this case, the motion judge did not invoke rule 20.04(4), and the formal order did not refer either to the rule or to any formal conclusions that were reached. The motion judge's determination that the defendant owed the plaintiff a prima facie duty of care was not binding on the trial judge and was not a final order.

Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322, [1993] O.J. No. 972, 64 O.A.C. 85, 45 M.V.R. (2d) 319, 40 A.C.W.S. (3d) 1031 (C.A.); Leone v. University of Toronto Outing Club, [2007] O.J. No. 1667, 2007 ONCA 323, 157 A.C.W.S. (3d) 14, consd

Almrei v. Canada (Attorney General), [2011] O.J. No. 6433, 2011 ONCA 779, 345 D.L.R. (4th) 475, 210 A.C.W.S. (3d) 294, 20 C.P.C (7th) 229, 5 Imm. L.R. (4th) 348, distd

Other cases referred to

Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492, [1977] 2 W.L.R. 1024, 75 L.G.R. 555, 141 J.P. 527, 5 Build. L.R. 1, 4 I.L.R. 21, 243 E.G. 573 (H.L.); [page402] Grand River Enterprises v. Burnham, 2005 CanLII 6368 (ON CA), [2005] O.J. No. 952, 197 O.A.C. 168, 10 C.P.C. (6th) 136, 137 A.C.W.S. (3d) 940 (C.A.); S. (R.) v. H. (R.) (2000), 2000 CanLII 17038 (ON CA), 52 O.R. (3d) 152, [2000] O.J. No. 4843, 195 D.L.R. (4th) 345, 139 O.A.C. 378, 7 C.P.C. (5th) 32, 19 R.F.L. (5th) 383, 101 A.C.W.S. (3d) 1093 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms

Immigration and Refugee Protection Act, S.C. 2001, c. 27 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 20.04(4), 20.05, 21.01(1)(a)

APPEAL from the order of Grace J., [2012] O.J. No. 2723, 2012 ONSC 1909 (S.C.J.) dismissing a motion for summary judgment.

Lise Favreau and Chantelle Blom, for appellant.

John Bruggeman, for respondents.

[1] BY THE COURT: -- On May 17, 2013, we dismissed this appeal for want of jurisdiction and indicated that our reasons would follow. These are our reasons.

[2] The respondent, Ms. Ashak, and her children sued Her Majesty the Queen in Right of Ontario as represented by the Director of the Family Responsibility Office ("FRO") for negligence and breach of fiduciary duty in collecting support arrears owing to Ms. Ashak by her former husband, for child and spousal support under an order made in 1996.

[3] On June 15, 2012, Grace J. dismissed a summary judgment motion brought by FRO requesting that the action be dismissed. Rather than accepting FRO's position that it did not owe a duty of care to the respondents, in the course of his reasons, the motion judge indicated he was satisfied that Ms. Ashak had established a prima facie duty of care in relation to her negligence claim and that other issues required a trial. Some examples of the motion judge's comments are the following:

"I am of the view [that] Ms. Ashak has established a prima facie duty of care and that there are several aspects of her claim which require a trial for their just determination" (para. 34).

"In my view, a prima facie duty of care arises in this case from the legislative scheme and the interactions between FRO and Ms. Ashak" (para. 44).

"In my view, the relationship between Ms. Ashak and FRO is sufficiently close -- or proximate -- that a prima facie duty of care arose" (para. 59). [page403]

"This is the rare situation identified by McLachlin C.J. in Imperial Tobacco. Writing for a unanimous court, the Chief Justice wrote: 'Some statutes may impose duties on state actors with respect to particular claimants'" (para. 70).

[4] Despite these statements, in the section of his judgment entitled "Conclusion and Disposition", the motion judge did not recite any specific findings that could lead to a conclusion of law, nor did he state any such conclusion. Rather, he said [at paras. 107 and 109]:

For the reasons given, the motion for summary judgment is dismissed.

I was not asked to and have therefore not given directions or imposed terms pursuant to rule 25.05. If there are directions or terms counsel agree would be appropriate, I would be pleased to assist.

[5] The formal order in this matter reads, "THIS COURT ORDERS that the motion for summary judgment is dismissed."

[6] On appeal to this court, FRO took the position that the order is a final order because the motion judge finally determined the question of whether FRO has a prima facie duty of care to the respondents in the circumstances of this case and that finding will be binding on the trial judge.

[7] We do not accept this submission. As was noted by this court in Leone v. University of Toronto Outing Club, [2007] O.J. No. 1667, 2007 ONCA 323, at para. 2, it is well established that, in general, an order dismissing a motion for summary judgment is not a final order because a decision under Rule 20 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] determines only that a genuine issue requiring a trial exists. Accordingly, to the extent that a motion judge may purport to make findings of fact in reasons for judgment dismissing a Rule 20 motion, such findings do not have binding effect [at para. 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), 1998 CanLII 14615 (ON CA), 42 O.R. (3d) 618 (C.A.).

[8] At para. 3 of its reasons, the court in Leone went on to identify the ability of a motion judge to make binding determinations of fact under rule 20.05 when dismissing a motion for summary judgment. However, the court was careful to [page404] emphasize that, if a motion judge proposes to exercise the powers under rule 25.05, the motion judge should say so -- and the formal order should reflect that [at para. 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.

[9] In our view, a similar power to make binding determinations of law when dismissing a motion for summary judgment likely exists under rule 20.04(4). Concerning this issue, we note that in S. (R.) v. H. (R.) (2000), 2000 CanLII 17038 (ON CA), 52 O.R. (3d) 152, [2000] O.J. No. 4843 (C.A.), at para. 21, Morden J.A., speaking for this court, indicated, albeit in obiter, that that was probably the case:

I should note that in Air Canada v. British Columbia, 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.

(Citations omitted)

[10] We note that rule 20.04(4) states that "[w]here the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly".

[11] Like the court in Leone, it is our view that, if a motion judge dismissing a motion for summary judgment proposes to exercise the power under rule 20.04(4) to make a binding determination of law, the motion judge should specifically invoke the rule, and reference to the rule, as well as the legal determination made, should form part of the formal order. In our opinion, the issue of whether an order is final or interlocutory should not turn on the forcefulness of the reasons for the conclusion: see S. (R.) v. H. (R.), at para. 16.

[12] Concerning the content of the formal order, we note that in Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322, [1993] O.J. No. 972 (C.A.), a case relied upon by FRO, the order under appeal set out the question of law decided against the appellant. In Ball, the defendant moved under rule 21.01(1)(a) for a determination before trial of a question of law raised by the pleadings, namely, that the action was barred by a limitation period. The motion judge decided the question of law against the defendant and the formal order read as follows: [page405]

1. THIS COURT DETERMINES that the action herein is not barred by the 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.

[13] In our view, in most instances, the content of the formal order is integral to determining what has been decided against a party in a fashion that is binding. As this court held in Grand River Enterprises v. Burnham, 2005 CanLII 6368 (ON CA), [2005] O.J. No. 952, 197 O.A.C. 168 (C.A.), "the law is clear that an appeal lies from an order, not from the reasons given by the judge making the order" (at para. 10).

[14] In this case, FRO did not refer to rule 20.04(4) in its notice of motion or single out for determination the question of whether it owes a prima facie duty of care to the respondents or the constituent findings that would lead to that conclusion. The motion judge did not invoke rule 20.04(4) and the formal order does not refer to either the rule or any formal conclusions that were reached.

[15] In support of its position that the order under appeal is a final order, FRO relied heavily on this court's decision in Almrei v. Canada (Attorney General), [2011] O.J. No. 6433, 2011 ONCA 779, 345 D.L.R. (4th) 475, in which an order dismissing a summary judgment motion was held to be a final order. Although it is not clear from this court's decision what was contained in the formal order, we have confirmed that the formal order contained in the appeal book in that case simply dismisses the motion for summary judgment and makes no reference to rule 20.04(4). Nonetheless, in our view, that decision should not be viewed as establishing a general principle that the question of whether an order dismissing a motion for summary judgment is final can be determined based on the motion judge's reasons.

[16] In Almrei, the appellant had been subject to two security certificates in succession under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. After a lengthy hearing, parts of which were held in camera or ex parte, a federal court judge quashed the second certificate as being unreasonable. In addition to his public reasons, the federal court judge gave secret reasons to which Mr. Almrei did not have access. In a subsequent civil proceeding against Canada for negligent investigation, false imprisonment and various Canadian Charter of Rights and Freedoms breaches, Mr. Almrei sought partial summary judgment based on the operation of issue estoppel. Lederman J. dismissed the motion, holding that the test for issue estoppel had not been met and that the operation of an estoppel in that case would be unfair. On a motion brought by Canada to quash Mr. Almrei's appeal, this court determined Lederman J.'s order dismissing the summary judgment motion was a final [page406] order. In doing so, this court relied on the novel nature of the appellant's proposed use of issue estoppel as a sword rather than as a shield and on the unusual context of the case. In our opinion, Almrei should not be viewed as establishing a general principle that where a judge purports to make legal determinations in reasons dismissing a summary judgment motion, those determinations should be treated as binding. We reach this conclusion for several reasons.

[17] First, as the court in Almrei noted, Mr. Almrei singled out for determination on the summary judgment motion the question of the use of issue estoppel. Because he did so, and because of the nature of the issue, dismissal of the motion for summary judgment led to the inevitable conclusion that Mr. Almrei could not rely on issue estoppel at trial. Such a result does not follow in cases such as this one where the moving party has not formally singled out the precise legal issue that the motion judge purportedly decided.

[18] Second, in Almrei, this court concluded that, because of the unusual facts of the case, Lederman J.'s determination of the issue estoppel question potentially deprived Mr. Almrei of substantive rights. This was because Mr. Almrei might never have access to or be able to call portions of the evidence heard by the federal court judge. The finding that issue estoppel could not operate therefore potentially deprived Mr. Almrei of the ability to prove his case.

[19] Third, unlike the situation in this case, where the respondents acknowledge that the prima facie duty of care issue has not been finally determined, in Almrei, Canada maintained that the question of issue estoppel was res judicata.

[20] In contrast to the situation in Almrei, in many cases, it would be difficult to determine the scope of the point of law conclusively determined by a motion judge who dismisses a Rule 20 motion if the precise finding is not carefully singled out by either the parties or the motion judge and is not embodied in a court order.

[21] In our view, that is especially the case here, where one of the issues identified in FRO's notice of motion was whether a genuine issue requiring a trial exists concerning whether FRO owes a duty of care for the good faith exercise of statutory discretion. The answer to that question required consideration of the two-step Anns[^1] test as it has been applied in Canada. The [page407] motion judge made definitive statements about the existence of a prima facie duty of care, which is the first step of the two-step analysis. However, his reasons were not so definitive about the precise components of the first step that led to that conclusion, particularly in relation to where and how policy considerations factored into his analysis.

[22] Without a more precise elaboration of the constituent elements of the prima facie duty of care finding, the motion judge's determination would leave it unclear how the trial judge should address the policy considerations crucial to the two-step duty of care analysis.

[23] As we have said, this is not a case like Almrei, where the moving party had singled out an issue for determination and where, because of the nature of the issue (a novel use of issue estoppel), dismissal of the summary judgment motion led to the conclusion that Mr. Almrei could not rely on issue estoppel at trial. On the contrary, especially in the circumstances of a case such as this one, had the parties or the motion judge intended any portion of the motion judge's reasons to constitute a final order, they ought to have ensured that the motion judge's findings on each element of the first step of the Anns test was embodied in a formal order.

[24] FRO also argued that it is clear from his reasons that the motion judge intended to make a final order. We do not accept that submission. As we have said, the motion judge did not make any findings in the "Conclusion and Disposition" section of his reasons. Moreover, he noted that he had not been asked to give directions or impose terms under rule 20.05 and invited the parties to agree upon directions or terms for submission to him. They did not do so.

[25] In the result, we have concluded that the motion judge's determination that FRO owed the respondents a prima facie duty of care is not binding on the trial judge and is not a final order. Accordingly, the appeal is dismissed for lack of jurisdiction.

[26] For the sake of completeness, we note that the respondents took no issue with FRO's appeal to this court until after Lederer J. raised the issue of the proper appeal route on an application for leave to appeal other aspects of the June 15, 2012 order to the Divisional Court. Even then, the respondents did not bring a formal motion to quash in advance of the appeal hearing. We note as well that, during the course of the oral hearing, we denied FRO's request for an adjournment to permit it to attempt to obtain an amendment of the formal order.

[27] We make no comment on the subject of whether FRO can or should be entitled to pursue a further leave application to the [page408] Divisional Court other than to say that nothing in these reasons should be taken as affecting that issue.

[28] Costs of the appeal are to the respondents on a partial indemnity scale fixed in the amount of $10,000, inclusive of disbursements and applicable taxes.

Appeal dismissed.

Notes

[^1] Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.).

End of Document