





CITATION: 3574423 Canada
    Inc. v. Imvescor Restaurants Inc., 2011 ONCA 800



DATE:  20111216



DOCKET: M40648-C53641







COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Laskin and Cronk JJ.A.



BETWEEN:



3574423 Canada Inc., Redwood Grille  Orlando, L.L.C.,
          Unique Hospitality, L.L.C., George Bozikis and Spiro Bozikis



Appellants



and



Imvescor Restaurants Inc. and PDM Royalties Limited
          Partnership



Respondents



Ian N. Roher and David S. Altshuller, for the
          appellants/responding parties

Randy C. Sutton and Rahool P. Agarwal, for the
          respondents/moving parties



Heard and released orally: December 12, 2011







ENDORSEMENT

[1]

The motion judge concluded that as a pure
    question of law s. 16.2 of the franchise agreement is not ambiguous (para. 53). 
    The respondents concede that this finding is final.  Thus, it is properly
    appealable to this court.

[2]

The balance of the matters raised in the
    proposed fresh amended notice of appeal are interlocutory.  Having disposed of
    the question of law referred to above, the motion judge made it clear that he was
    considering the remaining issues pursuant to the appellants motion for partial
    summary judgment under Rule 20.

[3]

The motion judge dismissed the Rule 20 motion on
    the basis the appellants failed to show that there were no genuine issues
    requiring a trial.  His findings on the motion related only to the genuine
    issue requiring a trial test.  He did not finally determine any of the issues
    that formed part of the Rule 20 motion.

[4]

Thus, none of the motion judges findings, other
    than the one referred to in para. 1 above, may form the basis for a plea of
res
    judicata
should this matter proceed to trial.

[5]

The motion is granted.

[6]

Costs are fixed in the amount of $5,000,
    inclusive of disbursements and applicable taxes.

D. OConnor A.C.J.O.

John I. Laskin J.A.

E.A. Cronk J.A.




