



COURT OF APPEAL FOR ONTARIO

CITATION:

Almrei v. Canada
    (Attorney General), 2012 ONCA 779

DATE: 20121115

DOCKET: C53707

Winkler C.J.O., LaForme J.A. and Cunningham
    A.C.J.S.C.J. (
ad hoc
)

BETWEEN

Hassan Almrei

Plaintiff (Appellant)

and

The Attorney General of Canada

Defendant (Respondent)

David Baker and Lorne Waldman, for the appellant

Paul J. Evraire and Marianne Zoric, for the respondent

Heard: September 11, 2012

On appeal from the order of Justice Sidney N. Lederman of
    the Superior Court of Justice dated April 15, 2011.

ENDORSEMENT

[1]

While this decision was under consideration, this court was advised that
    subsequent to the hearing of this appeal on September 11, 2012, the Registrar
    of the Superior Court of Justice notified the parties that Mr. Almreis
    underlying action was dismissed for delay under rule 48.14 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194. Without considering or deciding whether
    the appeal may be moot as a result, these are our reasons with respect to this
    appeal.

[2]

The appellant brought an action for damages arising out of the conduct
    of state actors in relation to two security certificates issued against him
    under the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27. In
    a review of the second of these certificates, Mosley J. of the Federal Court had
    found the certificate to be unreasonable and quashed it. In the course of his
    lengthy public reasons, reported at 2009 FC 1263, [2011] 1 F.C.R. 163, Mosley
    J. made numerous findings of facts.

[3]

The appellant moved for partial summary judgment before Lederman J. of
    the Superior Court of Justice on the basis of issue estoppel. He sought to
    invoke issue estoppel in order to have the factual findings made by Mosley J. in
    the security certificate proceeding bind the parties in the civil action. He
    argued that these findings satisfy all or most of the elements of the causes of
    action. In the alternative, the appellant requested an order under rule
    20.05(1), also based on the application of issue estoppel, specifying those
    material facts not in dispute and defining the issues to be tried.

[4]

Lederman J. dismissed the motion for summary judgment on the basis that
    the test for issue estoppel was not met. With respect to the relief under rule
    20.05(1), Lederman J. found that it was premature to consider directions
    pursuant to that provision given that the action was only at the pleadings
    stage and no evidence other than the findings of Mosley J. was put before the
    court. This appeal was brought from the order dismissing the appellants motion
    for partial summary judgment against the respondent.

[5]

The respondent brought a motion to quash this appeal on the basis that
    the order below was not final and that, therefore, this court did not have
    jurisdiction to hear the appeal. The respondent argued that it was still open
    to the appellant to prove his case by calling evidence at his trial.

[6]

A panel of this court dismissed the motion to quash on December 13,
    2011:
Almrei v. Attorney General of Canada
, 2011 ONCA 779. The panel
    noted, at para. 1, that a decision dismissing a motion for full or partial
    summary judgment will be interlocutory in many circumstances because the merits
    of the claim remain to be tried. However, the panel held, at para. 7, that the
    order in this case is final because: [t]he 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
 (emphasis
    added).

[7]

In oral argument on September 11, 2012, appellants counsel indicated for
    the first time that he is only seeking to appeal from the motion judges conclusion
    that issue estoppel does not apply. He is no longer taking the position that
    the findings of fact in the Federal Court proceeding could be entirely determinative
    of the Attorney Generals liability in the present action. He advised the court
    that he is no longer appealing the correctness of the order dismissing the
    motion for partial summary judgment.

[8]

The panel was concerned that this created a jurisdictional problem,
    since the result of the order below is no longer in dispute. After some
    questioning, the court adjourned the appeal in order to consider this problem.
    At counsels request, the court allowed the parties to make further written
    submissions on this point alone, which have now been considered.

[9]

In our view, the fact that the appellant is no longer appealing the order
    dismissing the motion for partial summary judgment under Rule 20, fundamentally
    alters the nature of the appeal and therefore the jurisdiction of this court to
    hear the matter. Hence, this panel is now in a different position than was the
    panel that decided the motion to quash. The appellants decision to focus
    solely on the motion judges findings with respect to the applicability of
    issue estoppel means, in effect, that he now wishes to appeal only a portion of
    the reasons.

[10]

An
    appeal lies from an order and not from the reasons of the court below:
Grand
    River Enterprises v. Burnham
(2005), 10 C.P.C. (6th) 136 (Ont. C.A.), at
    para. 10. Because the appellants only ground of appeal is that issue estoppel
    should apply, he is taking issue with the motion judges reasons and not his
    order dismissing the motion for partial and summary judgment.

[11]

This
    decision concerns only this courts appellate jurisdiction and ought not to be
    taken as having decided the question of whether and how the doctrine of issue
    estoppel may apply at trial for the purposes of establishing material facts
    that are not determinative of the respondents liability.

[12]

The
    appeal is, therefore, quashed for want of jurisdiction. In all the
    circumstances the respondent is awarded costs in the amount of $5,000 inclusive
    of disbursements and GST.

W. Winkler C.J.O.

H.S.
    LaForme J.A.

J.D. Cunningham A.C.J.
    S.C.J. (
ad hoc
)


