Dismissal of summary judgment motion is not always interlocutory

Almrei v. Canada (Attorney General), 2011 ONCA 779, released today, is a rare example of when a dismissal of a motion for summary judgment is a final order:

In many circumstances, a decision dismissing a motion for full or partial summary judgment will be interlocutory because the merits of the claim remain to be tried: seeCole v. Hamilton (City) (2002), 60 O.R. (3d) 284 (C.A.). This court, however, has identified circumstances in which dismissal of a motion for summary judgment will constitute a final order and thus may be appealed to this court. We conclude that the order of the motion judge in this case is a final order. Accordingly, the motion to quash the appeal is dismissed.

[2] The appellant has brought an action for damages alleging, among other things, negligent investigation, false imprisonment and breaches of ss. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. His claim arises out of the actions of state actors in relation to security certificates issued under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The appellant was subject to two security certificates, one issued on October 19, 2001 and a second one on February 22, 2008, and was held in custody for many years. In lengthy public reasons reported at 2009 FC 1263, Mosley J. found that the 2008 certificate was unreasonable and he quashed it. Mosley J. held a 38‑day hearing. Parts of that hearing were held in camera or ex parte. In addition to the lengthy public reasons, Mosley J. also gave secret reasons, to which the appellant has never had access.

[3] In the motion before Lederman J., the appellant sought partial summary judgment on the basis of issue estoppel. He argued, in effect, that the parties were bound by the findings made by Mosley J. that made out all or most of the elements of the causes of action. Lederman J. noted the unusual nature of this use of issue estoppel:

What is novel about this rule 20 motion is that the plaintiff is attempting to invoke the doctrine of issue estoppel as a sword to obtain a summary judgment rather than its traditional use as a shield or a defence to preclude further litigation on issues that have already been decided between the parties.

[4] It is the novel nature of the appellant's use of issue estoppel and the unusual context in which this case arises that convinces us that the order of Lederman J. is final. The effect of Lederman J.'s decision is to finally determine the question of issue estoppel and prevent the appellant from using the findings of fact made by Mosley J. in his action against the Attorney General. The moving party submits that the order is not final, because it is still open to the appellant to prove his case by calling evidence at his trial, without relying on the findings of Mosley J. That submission, however, overlooks the nature of the hearing conducted by Mosley J., which involved hearing evidence that the appellant may never be in a position to call or to even access. Depriving the appellant of the ability to use the findings of fact by Mosley J. could deprive the appellant of substantive rights.

[5] The final nature of the order in this case is demonstrated in the position of the Attorney General that the question of issue estoppel is now res judicata. According to the Attorney General, it is not open to the appellant to relitigate the use of Mosley J.'s findings at the trial. A hallmark of an order dismissing a motion for summary judgment is that findings are not res judicata: see, for example, Leone v. University of Toronto Outing Club, 2007 ONCA 323 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), 42 O.R. (3d) 618 (C.A.).

[6] Where, however, the order is res judicata, the order may be final: see Stoiantsis v. Spirou, 2008 ONCA 553 at para. 26:

Further support for this conclusion is found by resort to the doctrine of res judicata. To determine whether an order is final or interlocutory, courts often consider whether the issue can be said to be res judicata: see S.(R.) v. H.(R.) (2000), 52 O.R. (3d) 152 at paras. 19-21 (C.A.). Even though some orders only partially resolve issues between the parties, if the resolution of the particular question would give rise to an argument ofres judicata, then the order is final despite other issues remaining outstanding.

[7] In this case, the appellant singled out for resolution the question of use of issue estoppel. A finding that issue estoppel is not available is a final determination of that issue of law. The decision of the motion judge has arguably deprived the appellant of a substantive right that could have been entirely determinative of the Attorney General's liability: seeStoiantsis v. Spirou at para. 25. The decision of Taggart J.A. in Peerless Carpet Corp. v. Desjarlias, [1987] B.C.J. No. 1555 is somewhat analogous to this case, although in Peerless Carpet the defendant was attempting to use issue estoppel in the more usual way, as a shield rather than a sword. As Taggart J.A. said, at p. 3 (Q.L.):

As I view the order of Mr. Justice Davies now under appeal, it does finally dispose of the rights of the parties insofar as they are based upon the applicability of the doctrine of res judicata. As I see it, neither the plaintiff nor the defendants in the trial proceedings which are now in the Supreme Court, can raise the question of res judicata. The trial judge would be bound to give effect to the judgment of Mr. Justice Davies on that issue. The rights of the parties based on the single issue of res judicata have finally been disposed of