



COURT OF APPEAL FOR ONTARIO

CITATION: Skunk v. Ketash, 2016 ONCA 841

DATE: 20161110

DOCKET: C62077

Hoy A.C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

Christopher Skunk

Plaintiff (Respondent)

and

Laurel Ketash and
Jevco
    Insurance Company

Defendants (
Appellant
)

Chantal M. Brochu and Douglas Treilhard, for the
    appellant

Edward S.E. Kim, for the respondent

Heard:  September 12, 2016

On appeal from the order of Justice W. Danial Newton of
    the Superior Court of Justice, dated March 22, 2016, with reasons reported at
    2016 ONSC 2019, 130 O.R. (3d) 380.

Hoy A.C.J.O.
:

[1]The
    appellant, Jevco Insurance Company, appeals the dismissal of its summary
    judgment motion. It submits that, in his reasons, the motion judge made a final
    determination of law that is wrong and that will be binding on the trial
    judge.  The respondent, Christopher Skunk, argues that the motion judge did not
    make a final, binding determination in his reasons, the order under appeal is
    not a final order and this appeal should accordingly be quashed for lack of
    jurisdiction.

[2]
I agree with Mr. Skunk. Because the order
    dismissing Jevcos motion for summary judgment is not a final order, an appeal
    lies to the Divisional Court, with leave
.

[3]Before
    setting out my analysis of why the order under appeal is not a final order, I
    will first provide the factual and legal background necessary to understand the
    nuances of the parties arguments on jurisdiction.

A.

Background

(1)

Facts

[4]The underlying
    action arises out of a motor vehicle accident in October 2012. Mr. Skunk
    alleges that he was a passenger in a motor vehicle owned by his spouse, Maureen
    Skunk, but driven by a friend of his, Laurel Ketash. He alleges that the
    accident arose from the negligence of Ms. Ketash, who did not have automobile
    insurance at the time of the accident.

[5]In addition
    to suing Ms. Ketash, Mr. Skunk commenced an action against Jevco pursuant to s.
    265 of the
Insurance Act
, R.S.O. 1990, c. I.8, and a standard Ontario
    Automobile Policy - OAP 1 (the OAP or the Policy) and the optional OPCF 44R
    Family Protection Coverage Endorsement (the Endorsement) issued to his spouse.

[6]In suing
    Jevco, Mr. Skunk sought to recover under the uninsured provisions in the Policy
    and Endorsement. To explain why Mr. Skunk took that route, it is necessary to
    provide some context as to how Ontarios automobile insurance scheme works.

(2)

Applicable Insurance Principles

[7]Automobile
    insurance is compulsory in Ontario:
Compulsory Automobile Insurance Act
,
    R. S. O. 1990, c. C. 25. The purpose of this legislation is to protect victims
    of automobile accidents from having no means of seeking damages from persons
    who might have caused those damages without having the protection of automobile
    insurance:
Matheson v. Lewis
, 2014 ONCA 542, 121 O.R. (3d) 641, at
    para. 36.

[8]The owner of
    a motor vehicle is liable for accidents caused by its operation under s. 192 of
    the
Highway Traffic Act
, R.S.O. 1990, c. H.8, except where subsection
    (2) applies, which provides as follows:

The owner of a motor vehicle or street car
    is liable for loss or damage sustained by any person by reason of negligence in
    the operation of the motor vehicle or street car on a highway,
unless the
    motor vehicle or street car was without the owners consent in the possession
    of some person other than the owner or the owners chauffeur.
[Emphasis
    added.]


[9]
The purpose of s. 192(2)
was noted in
Fernandes v. Araujo,
2015 ONCA 571
,
127 O.R. (3d) 115 (C.A.), at
    para. 20:

[T]he purpose of
    this provision is "to protect the public by imposing, on the owner of a
    motor vehicle, responsibility for the careful management of the vehicle".
The provision is an integral element of the
Highway Traffic Act
's
    mandatory licensing and insurance scheme to ensure the public safety. The owner
    has the right to give possession of the vehicle to another person, but this
    provision "encourages owners to be careful when exercising that right by
    placing legal responsibility on them for loss to others caused by the negligent
    operation of the vehicle on a highway". [Emphasis added.]

[10]

I
f the motor vehicle is driven by
    a person who has the owners consent and is involved in an accident, s. 3.2 of
    the OAP provides coverage: You are covered when you, or anyone else in
    possession of a described automobile with your consent, uses or operates it. We
    will consider these other people insured persons.

[11]

In the normal course, if a person is injured by the operation of the
    motor vehicle in which he or she is a passenger, the vehicle owners insurer
    must respond.

[12]

But some owners fail to insure their automobile, or their insurance is
    voided, and so the automobile is not insured. The
Insurance Act
mandates
    a scheme to provide for limited insurance coverage where the operation of an
    uninsured automobile injures a person. The coverage is provided by the injured
    persons own insurer, but coverage is limited to the minimum required by s. 251
    of the
Insurance Act
, which is $200,000 for liability claims.

[13]

In order to mitigate the consequences of being injured by an uninsured
    or underinsured motor vehicle, purchasers of automobile insurance policies in
    Ontario can buy, for an additional premium, added coverage in the form of the
    OPCF 44R Family Protection Coverage Endorsement.

[14]

Against that background, I now turn to consider Mr. Skunks claim and
    Jevcos motion.

(3)

Mr. Skunks Claim and Jevcos Motion

[15]

Mr. Skunk did not sue his wife because he takes the position that Ms.
    Ketash was driving without Ms. Skunks consent so that under s. 192(2) of the
Highway
    Traffic Act
Ms. Skunk is not directly liable.

[16]

Instead, Mr. Skunk sued Jevco. As he takes the position that his
    spouses vehicle ceased to be insured when Ms. Ketash drove it without Ms.
    Skunks consent, he sued  under the uninsured automobile coverage provisions
    in s. 5 of the Policy, the inadequately insured motorist provisions in the Endorsement,
    and s. 265 of the
Insurance Act
, which defines the term uninsured
    automobile.

[17]

In its statement of defence, Jevco pleads that Mr. Skunk took possession
    of his spouses vehicle without her consent. It also takes the position that
    Ms. Ketash drove the vehicle without Ms. Skunks consent and, as a result, the
    vehicle became uninsured. However, Jevco takes the position that Mr. Skunk is
    excluded from uninsured coverage as the spouse of the vehicles owner based on the
Insurance Act
, the Policy and the Endorsement.

[18]

Section 265(1) of the
Insurance Act
requires that every motor
    vehicle liability policy provide coverage for damages where there is liability
    on the part of an owner or driver of an uninsured automobile. Section 265(2)
    defines uninsured automobile as follows:

uninsured automobile means an
    automobile with respect to which
neither the owner nor driver thereof has
    applicable and collectible bodily injury liability and property damage
    liability insurance for its ownership, use or operation,
but does not
    include an automobile owned by or registered in the name of the insured or his
    or her spouse.

[Emphasis
    added.]

[19]

This definition, which excludes automobiles owned by or registered in
    the name of the insured or his or her spouse, is in turn incorporated in
    virtually identical terms in s. 5 of the Policy and in the Endorsement.

[20]

Section 5 of the Policy provides as follows:

Uninsured Automobile Coverage

5.1 Introduction

5.1.1 Uninsured Automobile Coverage Schedule

This Section of the policy describes the terms and conditions
    of the coverage set out in the Uninsured Automobile Schedule under the
    Insurance Act (Ontario). If there is a difference between the interpretation of
    the wording of this Section and the interpretation of the wording in the
    Schedule, the Schedule prevails. However, 5.3.3 in this Section is an addition
    to the coverage provided by the Schedule.

5.1.2 What is an Uninsured Automobile?

An uninsured automobile is one for which
neither
    the owner nor driver has liability insurance to
cover bodily injury or property damage arising out
    of its ownership, use or operation, or the insurance is not collectible.
    However,
this does not include an automobile owned by or registered in
    the name of the insured person or their spouse.
[Emphasis added.]

[21]

The Endorsement provides as follows:

OPCF
    44R

FAMILY PROTECTION
COVERAGE



1.5 inadequately insured motorist means

(a) the identified owner or
    identified driver of an automobile for which the total motor vehicle liability
    insurance or bonds, cash deposits or other financial guarantees as required by
    law in lieu of insurance, obtained by the owner or driver is less than the
    limit of family protection coverage; or

(b) the driver or
owner of an uninsured automobile or unidentified automobile as defined in
    Section 5, Uninsured Automobile Coverage of the Policy.



1.11 uninsured automobile means an automobile with respect to
    which
neither the
    owner nor driver thereof has applicable and collectible bodily injury liability
    and property damage liability insurance for its ownership, use or operation
but does not include an automobile owned by or registered in the name of the
    insured or his or her spouse.




INSURING AGREEMENT

3. In consideration of a premium of $  or as stated in the
    Certificate of Automobile Insurance to which this change form is attached, the
    insurer shall indemnify an eligible claimant for the amount that he or she is
    legally entitled to recover from an inadequately insured motorist as
    compensatory damages in respect of bodily injury to or death of an insured
    person arising directly or indirectly from the use or operation of an
    automobile. [Emphasis added.]

[22]

Jevco brought a motion for summary judgment in an effort to have Mr.
    Skunks claim against the company dismissed, The narrow issue before the motion
    judge was whether, with respect to Mr. Skunks claim, the vehicle was excluded
    from the definition of uninsured automobile because it was owned by Mr. Skunks
    spouse.

[23]

In response to Jevcos motion, Mr. Skunk argued that, reading the
    Endorsement purposively, an automobile owned by or registered in the name of
    the insured or his or her spouse would be excluded from the definition of an uninsured
    automobile only if the insured or his or her spouse had
chosen

not to insure the automobile. He says that a vehicle taken without consent
    of the owner is an uninsured automobile.

[24]

The motion judge accepted Mr. Skunks argument.

(4)

The motion judges reasons

[25]

The motion judge began his analysis by reviewing
Fosker v. Thorpe
(2004), 72 O.R. (3d) 753 (S.C.), which arose from a r. 21 motion. In
Fosker
,
    a thief, in the course of stealing the plaintiffs car, struck the plaintiff
    with her own car. Applying the principles of statutory interpretation, Quinn J.
    held, at para. 29, that the wording of s. 265(2) of the
Insurance Act
,
    s. 5.1.2 of O.A.P. No.  1 and OPCF 44R is clear and unambiguous. Because the
    car was owned by the insured plaintiff, it was not an uninsured automobile.

[26]

The motion judge disagreed with Quinn J.s conclusion that s. 265(2) is
    clear and unambiguous. And, applying principles of contractual, rather than
    statutory, interpretation to the Endorsement, he concluded that those
    provisions were also ambiguous and should accordingly be construed against Jevco
    and given an interpretation that spreads, rather than closes, the safety net: 
    para. 30.

[27]

At para. 34, the motion judge wrote:

I therefore conclude that vehicles owned by the insured or
    spouse, if insured, are uninsured automobiles when taken without consent.
    Therefore, I conclude that Ms. Ketash, if she took the vehicle without consent,
    is an inadequately insured motorist under the [Endorsement].

[28]

It is this conclusion  which Jevco characterizes as a binding
    determination of law  that Jevco seeks to appeal to this court. The motion
    judge concluded para. 34 with the following sentence:

As such, I conclude that there
may
be coverage and Jevcos motion for summary judgment is dismissed. [Emphasis
    added.]

B.

jurisdictional analysis

(1)

This courts jurisprudence

[29]

There is no common law or inherent right of appeal. The
Courts of
    Justice Act
, R.S.O. 1990, c. C. 43, provides for the general appellate
    jurisdiction of this court and the Divisional Court in civil matters: see ss.
    6, 19 and 21.9.1.

[30]

Subject to certain exceptions  none of which are relevant in
    this case  an appeal lies to this court from a final order of a judge of the
    Superior Court of Justice. If an order is interlocutory, rather than final, the
    appeal lies to the Divisional Court, with leave:
Cole v. Hamilton (City)

(2002), 60
    O.R. (3d) 284 (C.A.), at para. 15;
Albert v. Spiegel
(1993), 17
    C.P.C. (3d) 90 (Ont. C.A.), at p. 91.

[31]

The reason for the distinction is explained by Paul M. Perell and John
    W. Morden in
The Law of Civil Procedure in Ontario,
2d ed. (Markham: Lexis-Nexis
    Canada Inc., 2014), at p. 910:

¶12.41 In general terms, the policy underlying the distinction
    between interlocutory and final orders is the proportionality principle. For
    judicial decisions that are of comparatively less importance to the parties and
    the public than other decisions (particularly those other decisions that are
    determinative of the outcome of the litigation), there should be no appeal at
    all, or the right of appeal should be curbed by a leave requirement. [Footnote
    omitted.]

[32]

A final order is one that finally disposes of an action or application,
    or that finally disposes of a substantive right of one of the parties:
Hendrickson
    v. Kallio
, [1932] O.R. 675, at p. 680;
Ball v. Donais
(1993), 13
    O.R. (3d) 322 (C.A.), at p. 324;
R.S. v. S.H.
(2000), 52 O.R. (3d) 152
    (C.A.), at para. 13;
Waldman v. Thomson Reuters Canada Ltd.
, 2015 ONCA
    53, 330 O.A.C. 142, at paras. 22-23.

[33]

Regrettably, the question of whether an order dismissing a
    summary judgment motion is a final order is not a novel one. In
V.K. Mason
    Construction Ltd. v. Canadian General Insurance Group Ltd.

(1998), 42 O.R. (3d) 618, Finlayson J.A.
    wrote this, at pp. 623-24 and 625-26:

When parties argue whether orders of this nature are final or
    interlocutory, they appear to lose sight of the fact that there is a remedy
    where the order is interlocutory, although admittedly, it is to another court
    and requires leave. It was apparent from the argument in this appeal that the
    appellant's real concern was not where to appeal the motions court judge's
    order allowing the action to proceed to trial. Rather, the real concern was
    that, unless overturned on appeal, the findings underlying this order would be
    binding on the judge who ultimately tried the action, either because the
    findings are
res judicat
a or raise
issue
    estoppel
, or because, in this particular case, they are so detailed
    and incisive that the trial judge, even if he or she does not feel obliged in
    law to follow them, will show them great deference and adopt them as
    persuasive. The latter consideration may be a sound reason for allowing leave
    to appeal, but it is of no concern to this court. As to
res judicata
or
issue estoppel
in the
    context of a motion for summary judgment that is dismissed, I do not think that
    the motions court judge's reasons should be taken as anything more than his
    explanation for finding that there is a genuine issue for trial. It is the
    finding that there is a genuine issue for trial that is
res judicata
.



Conceptually, it may be difficult to accept that where a
    plaintiff or defendant moves for summary judgment and succeeds, the appeal from
    that summary judgment is to this court as of right whereas if the moving party
    fails to obtain a summary judgment, the order dismissing the motion is to the
    Divisional Court, and only with leave of that court. However, the distinction
    has a long tradition in the law. The summary judgment finally determines the
    issue or issues between the parties and gives rise to a plea of
res
    judicata
in subsequent proceedings on the same issue or issues. An order
    dismissing a motion for summary judgment, on the other hand, determines only
    that there is a genuine issue for trial and the issue or issues have not been
    finally resolved.

[34]

This court reiterated in
Ashak v. Ontario (Director, Family
    Responsibility Office)
,
2013
    ONCA 375, 115 O.R. (3d) 401, at para. 7, that, in general, an order dismissing
    a motion for summary judgment is not a final order because a decision under r.
    20 determines only that a genuine issue requiring a trial exists.

[35]

Purported findings of fact by a motion judge who dismisses a summary
    judgment motion do not have binding effect in the subsequent proceeding unless
    the motion judge invokes her power under r. 20.05(1) to make an order
    specifying what material facts are not in dispute  a power that exists where
    summary judgment is refused or is granted only in part. As this court stated in
Ashak
, where a motion judge proposes to do so, she should specifically
    say so, and the order should refer to r. 20.05(1): para. 8, citing
Leone v.
    University of Toronto Outing Club
, 2007 ONCA 323, at para. 3.

[36]

The same principle applies in the case of questions of law. At paras.11
    and 13 of
Ashak
, the court wrote:

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)
[
[1]
]
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.

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.

[37]

Ashak
distinguished
Almrei v. Canada (Attorney General)
,
    2011 ONCA 779, 345 D.L.R. (4th) 475, in which an order dismissing a summary
    judgment motion was found to be a final order, and makes clear that
Almrei
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 a motion judges reasons: para.  15.

[38]

Mr. Almrei had been held in custody for many years on two successive
    security certificates issued under the
Immigration and Refugee Protection
    Act
, S.C. 2001, c. 27. Ultimately, after a lengthy hearing, parts of which
    were held
in camera
or
ex parte
, the second security certificate
    was quashed by Mosely J. Mr. Almrei subsequently commenced a civil action against
    Canada for, among other things, negligent investigation, false imprisonment and
    various
Charter
breaches. He brought a motion for partial summary
    judgment, arguing that
issue estoppel
applied and the parties were bound by the findings made by Mosley J. The motion
    judge dismissed Mr. Almreis motion, explaining that Mr. Almrei sought to
    invoke the doctrine of
issue estoppel
as a sword to obtain summary judgment, rather than as a shield or defence to
    preclude litigation on matters already decided between the parties, and that the
    test for
issue estoppel
had not
    been met.

[39]

This court dismissed the Attorney General of Canadas motion to quash
    Mr. Almreis appeal to this court. At para. 4 of its analysis, this court noted
    that the hearing before Mosely J. involved hearing evidence that Mr. Almrei might
    never be in a position to call or even access. Thus, depriving Mr. Almrei of
    the ability to use the findings of fact by Mosely J. could deprive Mr. Almrei
    of substantive rights.

[40]

At para. 7, this court concluded:

[Mr. Almrei] 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 General's liability.

[41]

In
Ashak
, the court provided three reasons why
Almrei
should not be taken as establishing a general principle that where a judge
    purports to make a legal determination in reasons dismissing a summary judgment
    motion those determinations should be treated as binding.

[42]

First, Mr. Almrei had formally singled out the precise legal issue to be
    decided. Unlike in
Ashak
, the precise scope of the point of law
    determined by the motion judge was clear.

[43]

Second, the determination on the question of issue estoppel potentially
    deprived Mr. Almrei of the ability to prove his case.

[44]

Third, Canada  the party that moved to quash the appeal on the basis
    that the order was interlocutory  maintained that the question of
issue estoppel
was
res judicata
.

[45]

By distinguishing
Almre
i
in that manner, the court left
    open the possibility that, in circumstances paralleling those in
Almrei
,
    a legal determination could be found to be binding, even if not included in the
    formal order.

[46]

In
Fanshawe College of Applied Arts and Technology v. AU Optronics
    Corp.
, 2015 ONCA 808, the motion judge made several determinations of law
    in the course of dismissing the defendants motion for summary judgment. When
    the defendants appealed to this court, the plaintiff moved to quash their
    appeal for lack of jurisdiction.  In the course of its submissions, the
    plaintiff conceded that nothing in the order sought to be appealed, or in the
    reasons of the motion judge in support of that order, precludes the [defendants]
    in any way from advancing at trial their arguments regarding s. 36(4) of the
Competition
    Act
or abuse of process as substantive defences or otherwise. In light of
    that concession, this court quashed the appeal in a three-paragraph endorsement
    on the basis that the order below was interlocutory, and not final.


(2)

Analysis and synthesis

[47]

I conclude that the issue of whether an automobile that has been taken
    without the consent of the owner is excluded from the definition of uninsured
    automobile by reason of the fact that it is owned by or registered in the name
    of the insured or his or her spouse is not
res judicata
, and that the
    motion judges order dismissing Jevcos summary judgment motion is therefore
    not a final order.

[48]

While the formal order in this case was issued nearly three years after
Ashak
was decided, it simply provides that the motion is dismissed and orders costs
    of the motion payable to Mr. Skunk. And  in face of
Ashak
 the motion
    judge did not invoke r. 20.04(4) and declare that an automobile that has been
    taken without the consent of the owner is not excluded from the definition of
    uninsured automobile by reason of the fact that it is owned by or registered
    in the name of the insured or his or her spouse.

[49]

Nor is it clear from examining the motion judges reasons, as Jevco
    urged this court to do, that the order under appeal is final.

[50]

Despite expressing a conclusion about the interpretation of the Endorsement
    in his reasons, the motion judge simply determined that there may be
    coverage. As I explain below, it is not clear that the motion judge did not
    simply conclude that there was a genuine issue for trial as to whether or not Mr.
    Skunk is entitled to coverage.

[51]

Jevco argues that the motion judge used the word may in his reasons
    because, albeit mistakenly, he thought that the issue of whether or not the
    vehicle was driven without the consent of Ms. Skunk would be a live issue at
    trial. Jevco points to the motion judges use of the word if at para. 34: Therefore,
    I conclude that Ms. Ketash,
if
she took the
    vehicle without consent, is an inadequately insured motorist (emphasis added).

[52]

At para. 3 of his reasons, the motion judge wrote that the vehicle  became
    uninsured when it was taken without consent by the defendant Ketash. However,
    after reciting the facts as recounted in Mr. Skunks factum, the motion judge
    wrote the following phrase, at para. 11, giving rise to Jevcos argument:  On
    these facts, it is not clear that there is a lack of consent.

[53]

As I have said, Mr. Skunks position is that Ms. Ketash drove Ms.
    Skunks vehicle without her consent. Lack of consent is necessary if Mr. Skunk
    is to succeed in his claim for coverage on the basis that the vehicle is an
    uninsured automobile. And Jevco concedes this element: it specifically pleads
    in its statement of defence that Mr. Skunk took his spouses vehicle without
    her consent. Thus, as the parties submit, the question of consent is not an
    issue for trial.

[54]

Jevcos explanation of why the motion judge used the words if and
    may is plausible. However, the motion judges reasoning is unclear.  Another
    plausible explanation is that the motion judge understood that the question of
    consent was not an issue for trial and used the word if because he did not
    want to appear to endorse what the parties had agreed amounted to lack of consent. 
    And, if that interpretation is accepted, then may is consistent with his
    determining only that there is a genuine issue for trial.  Given this ambiguity
    in the motion judges reasons, his conclusions should not be taken as anything
    more than his explanation for finding that there is a genuine issue for trial.

[55]

While not determinative in and of itself, Mr. Skunks concession is
    consistent with my view that the order under appeal is interlocutory. Despite
    the fact that it is against his interests at trial, he conceded that the issue of
    whether the vehicle is an uninsured automobile is not
res judicata
and that the trial judge is free to follow
Fosker
and conclude that it
    is not an uninsured automobile because it is owned by his spouse.

[56]

The debate about the interpretation of the motion judges reasons
    highlights the wisdom of
Ashak
. Had the motion judge specified that he
    was making a determination of law that was binding on the trial judge, or if
    the parties had prepared a form of order in accordance with
Ashak
,
    this court would have had jurisdiction to hear the appeal. Jevco  like Mr.
    Almrei  singled out a specific legal issue to be determined, and the issue 
    if resolved in Jevcos favour  would have been determinative of the action.

[57]

To understand the parties submissions on whether the motion judge had
    made a binding determination of law, it was necessary to delve into the substance
    of the appeal.  Having done so, the temptation is to find jurisdiction and rule
    on the merits, which would avoid the need for a further attendance by the parties.
    The efficiencies of time and cost for the parties are obvious. However, it
    would take away from the force of this courts directive in
Ashak
and
    increase the considerable uncertainty about when an appeal of the dismissal of
    a summary judgment motion lies to this court. That confusion results in costs
    and inefficiencies  to both litigants and the court system  on a wider scale.
    Post-
Hryniak
, the volume of summary judgment motions, and,
    anecdotally, the volume of appeals from the dismissal of summary judgment
    motions, have increased. Greater clarity is needed.

[58]

In an attempt to provide greater clarity, I would summarize the effect
    of this courts jurisprudence as follows:

1.

The general rule is that an order dismissing a motion for summary
    judgment is an interlocutory, and not a final, order.

2.

If a
    party argues that the motion judge made a final, binding determination of law
    that disposes of the substantive rights of one of the parties (Binding Legal
    Determination) in dismissing the summary judgment motion, then this court will
    consider whether the motion judges order invokes r. 20.04(4) and references
    the legal determination that the party argues is a Binding Legal Determination.

3. If
    the order does not invoke r. 20.04(4) and reference the legal determination
    that the party argues is a Binding Legal Determination, the court will usually consider
    whether the precise scope of the point of law determined by the motion judge is
    clear and whether it is clear that the motion judge intended that her determination
    be binding on the parties at trial. In this case, it was not clear that the
    motion judge intended his determination to be binding on the parties at trial.

[59]

I make two additional points.

[60]

First, consistent with this courts directions in
Ashak
, in the
    absence of an express indication by the motion judge that her determination is
    to be binding on the parties at trial, it should be presumed that in expressing
    a conclusion on a point of law when dismissing a summary judgment motion she is
    simply explaining why she concluded that there is a genuine issue requiring a trial,
    and did not intend her determination to be binding on the parties.

[61]

Second, while this court may take into account a partys concession that
    an issue is or is not
res judicata
in determining whether an order is
    final or interlocutory, a concession cannot confer or deprive the court of
    jurisdiction. I do not read either
Almrei
,
Ashak
or
Fanshawe
as suggesting otherwise.

[62]

The daily workload of Superior Court motion judges is heavy. Nonetheless,
    when dismissing a summary judgment motion, I would urge them to specifically
    consider to what extent they are making determinations of law intended to be
    binding on the parties at trial, and, if they are intending to make such
    determinations, invoke r. 20.04(4) and make clear in their orders and reasons
    that the determination is intended to be binding on the parties at trial.

C.

Disposition

[63]

I would accordingly quash this appeal for lack of jurisdiction. In the
    circumstances, I would make no award of costs.

Released: AH  NOV 10 2016

Alexandra Hoy
    A.C.J.O.

I agree P. Lauwers
    J.A.

I agree M.L. Benotto
    J.A.





[1]

Rule 20.04(4) provides: Where the court is satisfied that the
    only genuine issue is a question of law, the court may determine the question
    and grant judgment accordingly, but where the motion is made to a master, it
    shall be adjourned to be heard by a judge.


