



COURT OF APPEAL FOR ONTARIO

CITATION: Dams v. TD Home and Auto Insurance
    Company, 2013 ONCA 730

DATE: 20131203

DOCKET: C57006

Feldman, Epstein and van Rensburg JJ.A.

BETWEEN

Wolfgang Dams and Tammy Dams

Plaintiff (Respondents)

and

TD Home and Auto Insurance Company

Defendant (Appellant)

Dwain Burns, for the appellant

Christopher J. Haber and Matthew Caldwell, for the
    respondents

Heard: November 20, 2013

On appeal from the judgment of Justice James A. Ramsay of
    the Superior Court of Justice, dated April 10, 2013.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals from an order that dismisses the motion for
    summary judgment. That order is an interlocutory order that can only be
    appealed to the Divisional Court with leave.

[2]

The appellant seeks to appeal to this court based on what it says is a
    finding by the motion judge as part of the reasons regarding the interpretation
    of some statutory provisions, which finding it says is a final order. He relies
    on this courts decision in
Ball v. Donais
(1993) 13 O.R. (3d) 322
    (C.A.).

[3]

This court recently made an important ruling interpreting and clarifying
    the decision in
Ball v. Donais
in the case of
Ashak v. Ontario
(2013) ONCA 375. That case clarifies that in most instances as the appeal is
    from the order and not the reasons, the order must contain any finding of law
    that the parties and the motion judge intended would be final, in order to give
    this court jurisdiction to hear an appeal. A corollary is that if the finding
    below is not final, it has not been finally determined in the action, and if
    not appealed with leave, it remains an open question for trial.

[4]

In this case the motion judge concluded for the purposes of the motion
    that the legislation allowed him to grant relief from forfeiture and that in
    all the circumstances, it was a fit case in which to grant relief from
    forfeiture. Whether he was actually granting relief or just not granting
    summary judgment is not totally clear.

[5]

In our view the order is not final and is not appealable to this court. The
    motion is therefore dismissed on that basis. Costs in the amount of $9,950.00
    to the respondents.


