



COURT OF APPEAL FOR ONTARIO

CITATION: Ashak v. Ontario (Family Responsibility
    Office), 2013 ONCA 375

DATE: 20130606

DOCKET: C55781

Simmons, Hoy and Strathy JJ.A.

BETWEEN

Haiata
    Ashak, both personally and as Litigation Guardian for Steven Toma, Mona Toma and Mary Toma

Plaintiffs (Respondents)

and

Her
    Majesty the Queen in Right of Ontario, as
    represented by the Director for the Family Responsibility Office

Defendant (Appellant)

Lise Favreau and Chantelle Blom, for the appellant

John Bruggeman, for the respondents

Heard: May 17, 2013

On appeal from the judgment of Justice A. Duncan Grace of
    the Superior Court of Justice, dated June 15, 2012.

By the Court:

[1]

On May 17, 2013,
we dismissed this
    appeal for want of jurisdiction and indicated that our reasons would follow.
    These are our reasons.

[2]

The respondent, Ms.
    Ashak, and her children sued Her Majesty the Queen in Right of Ontario as
    represented by the Director of the Family Responsibility Office (FRO) for
    negligence and breach of fiduciary duty in collecting support arrears owing to
    Ms. Ashak by her former husband, for child and spousal support under an order
    made in 1996.

[3]

On June 15, 2012, Grace J.
    dismissed a summary judgment motion brought by FRO requesting that the action
    be dismissed. Rather than accepting FROs position that it did not owe a duty
    of care to the respondents, in the course of his reasons, the motion judge
    indicated he was satisfied that Ms. Ashak had established a
prima
    facie
duty of care in relation to her
    negligence claim and that other issues required a trial. Some examples of the
    motion judges comments are the following:

·

I am of the view [that] Ms. Ashak has established a
prima
    facie
duty of care and that there are several aspects of her claim which
    require a trial for their just determination (para. 34).

·

In my view, a
prima facie
duty of care arises in this
    case from the legislative scheme and the interactions between FRO and Ms.
    Ashak (para. 44).

·

In my view, the relationship between Ms. Ashak and FRO is
    sufficiently close  or proximate  that a
prima facie
duty of care
    arose (para. 59).

·

This is the rare situation identified by McLachlin C.J. in
Imperial
    Tobacco
. Writing for a unanimous court, the Chief Justice wrote: Some
    statutes may impose duties on state actors with respect to particular
    claimants (para. 70).

[4]

Despite these statements, in the
    section of his judgment entitled Conclusion and Disposition, the motion judge
    did not recite any specific findings that could lead to a conclusion of law,
    nor did he state any such conclusion. Rather he said:

For the reasons given, the motion for summary judgment is
    dismissed.



I was not asked to and have therefore not given directions or
    imposed terms pursuant to rule 25.05. If there are directions or terms counsel
    agree would be appropriate, I would be pleased to assist.

[5]

The formal order in this matter
    reads, "THIS COURT ORDERS that the motion for summary judgment is
    dismissed."

[6]

On appeal to this court, FRO took
    the position that the order is a final order because the motion judge finally
    determined the question of whether FRO has a
prima facie
duty of care to the respondents in the circumstances
    of this case and that finding will be binding on the trial judge.

[7]

We do not accept this submission.
    As was noted by this court in
Leone v. University of Toronto Outing
    Club
, 2007 ONCA 323, at para. 2, it is
    well-established that, in general, an order dismissing a motion for summary
    judgment is 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:

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.).

[8]

At para. 3 of its reasons, the
    court in
Leone
went on to
    identify the ability of a motion judge to make binding determinations of fact
    under rule 20.05 when dismissing a motion for summary judgment. However, the
    court was careful to emphasize that, if a motion judge proposes to exercise the
    powers under rule 25.05, the motion judge should say so  and the formal order
    should reflect that:

We note that Rule 20.05(1) and (2) do contemplate, in the
    circumstances described in Rule 20.05(1), findings of fact even where a motion
    for summary judgment is dismissed. If a motion judge proposes to make findings
    of fact under Rule 20.05(1), he or she should expressly invoke that provision
    and the order should refer to that provision.

[9]

In our view, a similar power to
    make binding determinations of law when dismissing a motion for summary
    judgment likely exists under rule 20.04(4). Concerning this issue, we note that
    in
S.(R.) v. H.(R.)
(2000), 52
    O.R. (3d) 152, at para. 21, Morden J.A., speaking for this court, indicated,
    albeit in
obiter
, that that was
    probably the case:

I should note that in
Air Canada v. British Columbia
[citations omitted], it was held that where a party singled out an issue for
    resolution on a motion for summary judgment, the resolution of that issue
    against the party gave rise to issue estoppel. In the same vein, an order
    dismissing a motion for summary judgment on a question of law, where the only
    genuine issue is the question of law (as provided for in rule 20.04(4)) should
    probably be regarded as giving rise to a
res judicata
and, hence, a final
    order.

[10]

We note that rule 20.04(4) states
    that [w]here the court is satisfied that the only genuine issue is a question
    of law, the court may determine the question and grant judgment accordingly.

[11]

Like the court in
Leone
, it is our view that, if a motion judge dismissing a
    motion for summary judgment proposes to exercise the power under rule 20.04(4)
    to make a binding determination of law, the motion judge should specifically
    invoke the rule, and reference to the rule, as well as the legal determination
    made, should form part of the formal order. In our opinion, the issue of whether
    an order is final or interlocutory should not turn on the forcefulness of the
    reasons for the conclusion: see
S.(R.) v. H.(R.)
,
at para. 16.

[12]

Concerning the content of the formal
    order, we note that in
Ball v. Donais
(1993), 13 O.R. (3d) 322 (C.A.), a case relied upon by FRO, the order
    under appeal set out the question of law decided against the appellant. In
Ball
, the defendant moved under rule 21.01(1)(a) for a
    determination before trial of a question of law raised by the pleadings,
    namely, that the action was barred by a limitation period. The motion judge
    decided the question of law against the defendant and the formal order read as
    follows:

1.THIS COURT DETERMINES that the action
    herein is not barred by the reason of the two year limitation period as
    provided in Section 180(1) of the Highway Traffic Act, R.S.O. 1980, chapter 198
    as amended.

[13]

In our view, in most instances, the
    content of the formal order is integral to determining what has been decided
    against a party in a fashion that is binding. As this court held in
Grand
    River Enterprises v. Burnham
(2005), 197
    O.A.C. 168 (C.A.), "the law is clear that an appeal lies from an order,
    not from the reasons given by the judge making the order" (at para. 10).

[14]

In this case, FRO did not refer to
    rule 20.04(4) in its notice of motion or single out for determination the
    question of whether it owes a
prima facie
duty of care to the respondents or the constituent
    findings that would lead to that conclusion. The motion judge did not invoke
    rule 20.04(4) and the formal order does not refer to either the rule or any
    formal conclusions that were reached.

[15]

In support of its position that
    the order under appeal is a final order, FRO relied heavily on this courts
    decision in
Almrei v. Canada (Attorney General)
2011 ONCA, 2011 ONCA 779, 345 D.L.R. (4th) 475, in
    which an order dismissing a summary judgment motion was held to be a final
    order. Although it is not clear from this court's decision what was contained
    in the formal order, we have confirmed that the formal order contained in the
    appeal book in that case simply dismisses the motion for summary judgment and
    makes no reference to rule 20.04(4). Nonetheless, in our view, that decision should
    not be viewed as establishing a general principle that the question of whether
    an order dismissing a motion for summary judgment is final can be determined
    based on the motion judges reasons.

[16]

In
Almrei
, the appellant had been subject to two security certificates
    in succession under the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27. After a lengthy hearing, parts of
    which were held
in camera
or
ex
    parte
, a federal court judge quashed the
    second certificate as being unreasonable. In addition to his public reasons,
    the federal court judge gave secret reasons to which Mr. Almrei did not have
    access. In a subsequent civil proceeding against Canada for negligent
    investigation, false imprisonment and various
Charter
breaches, Mr. Almrei sought partial summary judgment
    based on the operation of issue estoppel. Lederman J. dismissed the motion,
    holding that the test for issue estoppel had not been met and that the
    operation of an estoppel in that case would be unfair. On a motion brought by
    Canada to quash Mr. Almreis appeal, this court determined Lederman J.s order
    dismissing the summary judgment motion was a final order. In doing so, this
    court relied on the novel nature of the appellants proposed use of issue
    estoppel as a sword rather than as a shield and on the unusual context of the
    case. In our opinion,
Almrei
should not be viewed as establishing a general principle that where a judge
    purports to make legal determinations in reasons dismissing a summary judgment
    motion those determinations should be treated as binding. We reach this
    conclusion for several reasons.

[17]

First, as the court in
Almrei
noted, Mr. Almrei singled out for determination on
    the summary judgment motion the question of the use of issue estoppel. Because
    he did so, and because of the nature of the issue, dismissal of the motion for
    summary judgment led to the inevitable conclusion that Mr. Almrei could not
    rely on issue estoppel at trial. Such a result does not follow in cases such as
    this one where the moving party has not formally singled out the precise legal
    issue that the motion judge purportedly decided.

[18]

Second, in
Almrei
, this court concluded that, because of the unusual
    facts of the case, Lederman J.s determination of the issue estoppel question
    potentially deprived Mr. Almrei of substantive rights. This was because Mr. Almrei
    might never have access to or be able to call portions of the evidence heard by
    the federal court judge. The finding that issue estoppel could not operate
    therefore potentially deprived Mr. Almrei of the ability to prove his case.

[19]

Third, unlike the situation in
    this case, where the respondents acknowledge that the
prima facie
duty of care issue has not been finally determined,
    in
Almrei
,
Canada maintained
    that the question of issue estoppel was
res judicata
.

[20]

In contrast to the situation in
Almrei
, in many cases, it would be difficult to determine
    the scope of the point of law conclusively determined by a motion judge who
    dismisses a Rule 20 motion if the precise finding is not carefully singled out
    by either the parties or the motion judge and is not embodied in a court order.

[21]

In our view, that is especially
    the case here, where one of the issues identified in FROs notice of motion was
    whether a genuine issue requiring a trial exists concerning whether FRO owes a
    duty of care for the good faith exercise of statutory discretion. The answer to
    that question required consideration of the two-step
Anns
[1]
test as it has been applied in Canada. The motion
    judge made definitive statements about the existence of a
prima
    facie
duty of care, which is the first step
    of the two-step analysis. However, his reasons were not so definitive about the
    precise components of the first step that led to that conclusion, particularly
    in relation to where and how policy considerations factored into his analysis.

[22]

Without a more precise elaboration
    of the constituent elements of the
prima facie
duty of care finding, the motion judges
    determination would leave it unclear how the trial judge should address the
    policy considerations crucial to the two-step duty of care analysis.

[23]

As we have said, this is not a
    case like
Almrei
where the moving party had singled out an issue for
    determination and where, because of the nature of the issue (a novel use of
    issue estoppel), dismissal of the summary judgment motion led to the conclusion
    that Mr. Almrei could not rely on issue estoppel at trial. On the contrary,
    especially in the circumstances of a case such as this one, had the parties or
    the motion judge intended any portion of the motion judges reasons to
    constitute a final order, they ought to have ensured that the motion judges
    findings on each element of the first step of the
Anns
test was embodied in a formal order.

[24]

FRO also argued that it is clear
    from his reasons that the motion judge intended to make a final order.  We do
    not accept that submission. As we have said, the motion judge did not make any
    findings in the Conclusion and Disposition section of his reasons. Moreover,
    he noted that he had not been asked to give directions or impose terms under
    rule 20.05 and invited the parties to agree upon directions or terms for
    submission to him. They did not do so.

[25]

In the result, we have concluded
    that the motion judge's determination that FRO owed the respondents a
prima
    facie
duty of care is not binding on the
    trial judge and is not a final order. Accordingly, the appeal is dismissed for
    lack of jurisdiction.

[26]

For the sake of completeness, we
    note that the respondents took no issue with FROs appeal to this court until
    after Lederer J. raised the issue of the proper appeal route on an application
    for leave to appeal other aspects of the June 15, 2012 order to the Divisional
    Court. Even then, the respondents did not bring a formal motion to quash in
    advance of the appeal hearing. We note as well that, during the course of the
    oral hearing, we denied FROs request for an adjournment to permit it to
    attempt to obtain an amendment of the formal order.

[27]

We make no comment on the subject
    of whether FRO can or should be entitled to pursue a further leave application
    to the Divisional Court other than to say that nothing in these reasons should
    be taken as affecting that issue.

[28]

Costs of the appeal are to the
    respondents on a partial indemnity scale fixed in the amount of $10,000
    inclusive of disbursements and applicable taxes.

Released: June 6, 2013 JS                                            Janet
    Simmons J.A.

Alexandra
    Hoy J.A.

G.R.
    Strathy J.A.





[1]

Anns v. Merton London Borough Council
, [1978] A.C.
    728.


