Barrister and Solicitor
Legal Writing and Research
Orders - Interlocutory versus Final
Res Judicata - Issue Estoppel
Civil Procedure - Summary Judgment - Issue Estoppel
Vanden Bussche Irrigation & Equipment Limited v. Kejay Investments Inc. (Ont CA, 2016)
This case, which considers the law of interlocutory versus final Orders, primarily stands for the proposition that fact-findings made in a summary judgment motion (where the standard is whether there is a 'genuine issue for trial') are only binding at trial when the motion judge expressly declares them to be so in their reasons and/or the written Order:
 In Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375 (CanLII), 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.”
 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.
 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,  O.J. No. 6492, at para. 14.
 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.
 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.