Court File and Parties

CITATION: Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 6175

DIVISIONAL COURT FILE NO.: 21/416

DATE: 2021-09-27

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JESSICA COUTINHO, Plaintiff (Responding Party)

AND: OCULAR HEALTH CENTRE LTD., Defendant (Moving Party)

BEFORE: Swinton, D.L. Edwards and Matheson JJ.

COUNSEL: Robert A. Konduros, for the Plaintiff (Responding Party) Christine Ashton and Parisima Zandi, for the Defendant (Moving Party)

HEARD: in writing

Endorsement

[1] The defendant brings a motion for leave to appeal the order of D.A. Broad J. dated May 14, 2021 (2021 ONSC 3076) dismissing a motion for summary judgment.

[2] The order, as signed, is interlocutory, as it dismisses the motion for summary judgment. The formal order does not deal with the motion judge’s findings respecting two defences.

[3] It is clear that the motion judge made a final decision about these two defences, given that he restricted the scope of the issues for trial to exclude those defences. Those final determinations ought to have formed part of the order. As the Court of Appeal stated in Skunk v. Ketash, 2016 ONCA 841 at para. 62:

The daily workload of Superior Court motion judges is heavy. Nonetheless, when dismissing a summary judgment motion, I would urge them to specifically consider to what extent they are making determinations of law intended to be binding on the parties at trial, and, if they are intending to make such determinations, invoke r. 20.04(4) and make clear in their orders and reasons that the determination is intended to be binding on the parties at trial.

[4] There is a right of appeal from a final order of a Superior Court justice, which lies to the Court of Appeal unless the amount in issue is within the monetary jurisdiction of the Divisional Court. However, the order as framed is interlocutory. The moving parties have not met the test for leave to appeal an interlocutory order. Accordingly, the motion for leave to appeal is dismissed.

[5] Each party shall bear their own costs.

Swinton J.

D.L. Edwards J.

Matheson J.

Released: September 27, 2021