Skunk v Ketash: Order Dismissing Summary Judgment Motion is Generally Interlocutory

In Skunk v Ketash, the Court of Appeal for Ontario found that an order dismissing a summary judgment motion was interlocutory. Hoy A.C.J.O., on behalf of a unanimous Court, also provided guidance on when an order dismissing a summary judgment motion may be considered a final, as opposed to an interlocutory, order.

Background

Christopher Skunk was injured while he was a passenger in a car owned by his wife. He sued Jevco Insurance Company, the car’s insurer, claiming recovery on the basis that he was injured by an “uninsured vehicle” and, therefore, entitled to coverage under Jevco’s policy. Jevco brought a motion for summary judgment dismissing Mr. Skunk’s claim; it argued that Mr. Skunk’s injuries were not covered under the policy because he was injured while he was a passenger in his wife’s car.

The motion judge dismissed Jevco’s motion. Jevco appealed that order to the Court of Appeal. Mr. Skunk argued that the order was an interlocutory one that had to be appealed, with leave, to the Divisional Court; therefore, he argued, the appeal had to be quashed.

Court of Appeal’s Decision

Hoy A.C.J.O. noted that “[r]egrettably, the question of whether an order dismissing a summary judgment motion is a final order is not a novel one.” To provide greater clarity, she summarized the Court’s jurisprudence on this issue:

• The general rule is that an order dismissing a motion for summary judgment is an interlocutory, and not a final, order.
• 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 the Court of Appeal will consider whether the motion judge’s order invokes r. 20.04(4) and references the legal determination that the party argues is a Binding Legal Determination.
• 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 of Appeal 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.

The motion judge had not referenced r. 20.04(4) when dismissing Jevco’s summary judgment motion. In addition, based on a review of his reasons, Hoy A.C.J.O. concluded that it was not clear that the motion judge intended his determination to be binding on the parties at trial. Therefore, the motion judge’s order was interlocutory and Jevco’s appeal was quashed.