As summary judgment motions become the more common way for parties to resolve their disputes, Ontario Courts have had to deal with the consequences of a failed motion. A recent decision of the Ontario Court of Appeal, Skunk v. Ketash, 2016 ONCA 841, answers the question of whether a judge who dismisses a motion for summary judgment has in fact made conclusive rulings of law that will later bind the trial judge.
Skunk involved a motor vehicle accident. The plaintiff was a passenger in a car owned by his wife, but driven by his friend. In addition to bringing an action against his friend, the plaintiff sued his insurer pursuant to the uninsured provisions of the policy. He argued that since his friend was driving his wife's vehicle at the time of the accident without his wife's consent and his friend did not have insurance, he was entitled to coverage under his uninsured automobile policy. The insurer brought a motion for summary judgment to dismiss the husband's claim.
The issue before the motions judge was whether the vehicle was excluded from the definition of "uninsured automobile" under the policy because the car was owned by the insured's spouse, i.e. wife. The plaintiff argued that a vehicle taken without the consent of the owner was an "uninsured automobile" under the policy.
The motions judge upheld the plaintiff's position and dismissed the insurer's motion for summary judgment:
I therefore conclude that vehicles owned by the insured or spouse, if insured, are "uninsured automobiles" when taken without consent. Therefore, I conclude that [the friend], if she took the vehicle without consent, is an "inadequately insured motorist" under the [insurance policy]. ...
As such, I conclude that there may be coverage and Jevco's motion for summary judgment is dismissed [emphasis added]
The insurer appealed the motion judge's ruling to the Court of Appeal. One of the issues on appeal was whether the Court of Appeal lacked the jurisdiction to hear the matter because the decision was not a "final" order. The plaintiff argued that the motions judge did not make a final ruling on the central legal issue in dismissing the insurer's motion for summary judgment and therefore the order was interlocutory. As such, the plaintiff argued that the Divisional Court, and not the Court of Appeal, was the proper forum for the appeal and that the appeal could only be heard with leave of the Divisional Court.
The Court of Appeal agreed with the plaintiff and quashed the...