Summary Judgment Motions: Don’t Appeal Before the Motion is Complete
Overview:
In Athanassiades v. Rogers Communications Canada Inc.,[1] the Court of Appeal concluded that absent truly exceptional circumstances, a summary judgment motion should not be appealed until it is complete.
Background Facts:
The plaintiff, Andrew Athanassiades, brought an action against the defendant, Rogers Communication Canada Inc. (“Rogers”), alleging failure to provide him with internet service and subsequent collection attempts. A few months after Mr. Athanassiades cancelled his services, Rogers reversed all charges and late fees.[2]
Mr. Athanassiades advanced the following four causes of action:
- Spoliation;
- Intentional infliction of mental suffering;
- Defamation; and
- Breach of contract.
History of the Litigation:
After exchanging documents and attending examinations for discoveries, Rogers brought a summary judgment motion. The motions judge, Justice Reid, dismissed the claims of intentional infliction of mental suffering and spoliation and ordered the parties to attend in person to provide oral evidence relating to the defamation claim and make further submissions regarding the breach of contract.[3]
Rather than providing oral evidence and further submissions, Mr. Athanassiade brought an appeal. He took issue with Justice Reid’s decision as a whole, including alleging that he misapplied the test for summary judgment. He argued that the Court of Appeal has jurisdiction over this appeal because the dismissal of the claims for intentional infliction of mental suffering and spoliation are final orders.
Prior to the hearing, the Court of Appeal sent a letter to both parties, stating:
The Panel hearing the appeal has asked that, assuming that the appeal concerns a final order within the jurisdiction of the court, the parties please be prepared to address possible concerns arising out of bifurcating the proceeding and hearing the appeal at this stage, when the mini-trial on the remaining causes of action has yet to occur.[4]
Court’s Analysis:
The Courts of Justice Act states that final orders are to be appealed to the Court of Appeal[5] and interlocutory orders can be appealed to the Divisional Court, with leave.[6]
Combined appeals that fall within both the Court of Appeal and the Divisional Court’s jurisdictions can be appealed to the Court of Appeal.[7] However, case law has established that “where an appeal lies to the Divisional Court and leave is required from that court, in the normal course, the appellant must first obtain leave from the Divisional Court before seeking to combine an appeal that lies to the Divisional Court with an appeal that lies to this court as of right.”[8]
There are exceptional circumstances where the Court of Appeal will grant leave as part of the application, but this is only when leave would have inevitably been granted by the Divisional Court because the final and interlocutory issues are intertwined.
This appeal arose out of a mix of final and interlocutory orders. The Orders dismissing spoliation and intentional infliction of mental suffering are final. However, the Orders requiring a mini-trial for defamation and breach of contract are interlocutory and the trial had not yet occurred. The focus of this appeal is the interlocutory orders, not the final orders.
The Court dismissed the appeal, concluding that it is impractical and a waste of resources to hear this appeal as the summary judgment motion had not been completed. Further, waiting until the summary judgment motion is complete potentially avoids partial summary judgment, which can lead to inconsistent or duplicative findings.
Request to Reopen Argument:
Following the Court of Appeal hearing, Mr. Athanassiades requested the opportunity to make further submissions, arguing a lack of procedural fairness. The Court disagreed and stated that they notified counsel ahead of the hearing that there would be a discussion about whether the appeal should be heard before the completion of the mini-trial. Further, Mr. Athanassiades can appeal the summary judgment motion once complete.
Takeaways:
This decision provides helpful commentary on why summary judgment motions should not be appealed until the entire motion has been completed. It also leaves the door open for “truly exceptional circumstances” where an appeal prior to the completion of a summary judgment motion may be appropriate.
[1] Athanassiades v. Rogers Communications Canada Inc., 2024 ONCA 497 (“Athanassiades Appeal”).
[2] Athanassiades v. Rogers Communications Canada Inc., 2023 ONSC 4593.
[3] Ibid.
[4] Athanassiades Appeal, supra note 1 at para 4.
[5] Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b).
[6] Ibid at s. 19(1)(b).
[7] Ibid at s. 6(2).