





CITATION:
Almrei v. Canada (Attorney General), 2011
          ONCA 779



DATE: 20111213



DOCKET: M40628 (C53707)



COURT OF APPEAL FOR ONTARIO



Rosenberg, Cronk and Watt JJ.A.



BETWEEN



Hassan Almrei



Respondent (Appellant in Appeal)



and



The Attorney General of Canada



Moving Party (Respondent in Appeal)



Paul J. Evraire, Q.C. and Marianne Zoric, for the Attorney
          General of Canada, the Moving Party



Lorne Waldman and David Baker, for the respondent Hassan
          Almrei



Heard: December 5, 2011



ENDORSEMENT



[1]

The respondent Attorney General of Canada brings this motion to quash
    Mr. Almreis appeal from the decision of Lederman J. dismissing a motion
    for partial summary judgment. 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: see
Cole 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 appellants 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 of
res 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 Generals liability: see
Stoiantsis 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.

[8]

Accordingly, the motion to quash is dismissed. The appellant is entitled
    to his costs of the motion fixed at $5,000, inclusive of disbursements and all
    applicable taxes.

Signed:           M. Rosenberg J.A.

E. A. Cronk J.A.

David Watt J.A.


