COURT OF APPEAL FOR ONTARIO

CITATION: Vanden Bussche Irrigation & Equipment Limited v. Kejay Investments Inc., 2016 ONCA 613

DATE: 20160804

DOCKET: M46741

Weiler J.A. (In Chambers)

BETWEEN

Vanden Bussche Irrigation & Equipment Limited

Plaintiff (Respondent)/Responding Party

and

Kejay Investments Inc.

Defendant (Appellant)/Moving Party

Counsel:

Stephen Pickard, for the moving party

No one appearing for the responding party

Heard: August 4, 2016

ENDORSEMENT

[1] The applicant, Kejay Investments Inc. (Kejay), seeks an order permitting the late filing of a notice of appeal. The respondent, Vanden Bussche Irrigation & Equipment Limited (Vanden), takes no position on the motion and did not appear although duly served.

[2] Kejay is the defendant in an action brought by Vanden for payment for equipment it supplied to Kejay. Kejay brought a motion for summary judgment to dismiss the action against it on the basis that the limitation period for bringing the action had run and the action was statute barred.

[3] The motion judge dismissed the motion for summary judgment on the basis that equipment had been returned to Vanden, “… and it was well understood that the return of the equipment would operate to reduce the debt in part, and thus would operate as part payment of the debt as contemplated in s. 13(11). Since some of this occurred within the operation of the limitation period, it operated to trigger an extension of the limitation period until at least June, 2015. Accordingly, this action [w]as commenced in time.” That said, and without giving reasons, the motion judge also declined to grant summary judgment to the plaintiff on its claim and sent the action on to trial.

[4] The order taken out simply stated, “THIS COURT ORDERS that the Defendant’s motion is hereby dismissed.”

[5] Kejay wishes to argue the limitation period defence at trial and is concerned that it may be estopped from doing so by the motion judge’s reasons for judgment.

[6] Having regard to the fact that ordinarily the dismissal of a motion for summary judgment is an interlocutory order, Kejay brought a motion for leave to appeal to the Divisional Court pursuant to s. 19(1)(b) of the Courts of Justice Act.

[7] However, Kejay then concluded that its appeal was in the wrong court because, “the decision disposes of a substantive right,” so advised Vanden and brought this motion.

[8] In Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375, this court, based on identical wording in the order, held at para. 7, that the order was not a final order because, “a decision under Rule 20 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.”

[9] The court in Ashak further noted at paras. 8-11 that while a court has the power to make binding determinations of fact under rule 20.05 when dismissing a motion for summary judgment if a court proposes to exercise that power the motion judge should say so and the formal order should reflect that. A similar power to make a binding determination of law likely exists under rule 20.04(4), but again, if the motion judge purports to exercise that power, the judge should specifically invoke and reference the rule and the legal determination made should form part of the formal order.

[10] Since the decision in Ashak, there has been jurisprudence from our court explaining that in some cases to determine whether an order is truly final or interlocutory one needs to look at the reasons and determine whether a defendant has been deprived of a substantive right or defence that could resolve all or part of the proceedings: Walchuk, Estate Trustee and Houghton, [2015] O.J. No. 6492, at para. 14.

[11] In this case, the motion judge did not specifically invoke and reference the rule giving him the power to make a binding determination nor does the order taken out reflect any determination on the issue of the limitation period. Although the limitation period defence was the only issue before the motion judge and he purported to decide it, he also refused to grant summary judgment on the claim to the plaintiff and sent the matter on for trial. It does not appear that there would be any reason for him to do so unless he was of the opinion that there was a genuine issue requiring a trial respecting the limitation period.

[12] In the result, I have concluded that the motion judge’s determination that the limitation period had not run is not binding and is not a final order. Accordingly, were I to grant leave to file a notice of appeal, this court would not have jurisdiction to entertain the appeal and for this reason the motion is dismissed.

“K.M. Weiler J.A.”