Ashak v. Family Responsibility Office (Ont.), (2013) 307 O.A.C. 103 (CA)

• Judge: Simmons, Hoy and Strathy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 17, 2013
• Jurisdiction: Ontario
• Citations: (2013), 307 O.A.C. 103 (CA);2013 ONCA 375

Ashak v. Family Responsibility (2013), 307 O.A.C. 103 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JN.004

Haiata Ashak, both personally and as Litigation Guardian for Steven Toma, Mona Toma and Mary Toma (plaintiffs/respondents) v. Her Majesty the Queen in Right of Ontario, as represented by the Director for the Family Responsibility Office (defendant/appellant)

(C55781; 2013 ONCA 375)

Indexed As: Ashak v. Family Responsibility Office (Ont.)

Ontario Court of Appeal

Simmons, Hoy and Strathy, JJ.A.

June 6, 2013.

Summary:

Ashak and her children (the respondents) sued Her Majesty the Queen in Right of Ontario as represented by the Director of the Family Responsibility Office ("FRO") for negligence and breach of fiduciary duty in collecting child and spousal support arrears owing to Ashak by her former husband. FRO moved for summary judgment dismissing the action.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 1909, dismissed the motion. In the course of his reasons, the motion judge indicated he was satisfied that Ashak had established a prima facie duty of care in relation to her negligence claim and that other issues required a trial. The formal order read, "This court orders that the motion for summary judgment is dismissed". FRO appealed. FRO contended that the order was a final order because the motion judge finally determined the question of whether FRO had a prima facie duty of care to the respondents and that finding would be binding on the trial judge.

The Ontario Court of Appeal held that the motion judge's determination that FRO owed the respondents a prima facie duty of care was not binding on the trial judge and was not a final order. Accordingly, the appeal was dismissed for lack of jurisdiction.

Practice - Topic 5467

Judgments and orders - Finality of judgments and orders - Judgments and orders subject to appeal - Ashak and her children (the respondents) sued Her Majesty the Queen in Right of Ontario as represented by the Director of the Family Responsibility Office ("FRO") for negligence and breach of fiduciary duty in collecting child and spousal support arrears owing to Ashak by her former husband - The motion judge dismissed the FRO's motion for summary judgment to dismiss the action - In the course of his reasons, the motion judge indicated he was satisfied that Ashak had established a prima facie duty of care in relation to her negligence claim and that other issues required a trial - The formal order read, "This court orders that the motion for summary judgment is dismissed" - FRO appealed - FRO contended that the order was a final order because the motion judge finally determined the question of whether FRO had a prima facie duty of care to the respondents and that finding would be binding on the trial judge - The Ontario Court of Appeal held that the motion judge's determination that FRO owed the respondents a prima facie duty of care was not binding on the trial judge and was not a final order - Accordingly, the appeal was dismissed for lack of jurisdiction - In general, an order dismissing a motion for summary judgment was not a final order because a decision under rule 20 determined only that a genuine issue requiring a trial existed - Accordingly, to the extent that a motion judge might purport to make findings of fact in reasons for judgment dismissing a rule 20 motion, such findings did not have binding effect - A power to make binding determinations of law when dismissing a motion for summary judgment likely existed under rule 20.04(4) - However, if a motion judge proposed to exercise the power under rule 20.04(4) to make a binding determination of law, the judge should specifically invoke the rule, and refer to the rule, and the legal determination made should form part of the formal order.

Practice - Topic 5701

Judgments and orders - Summary judgments - General - [See Practice - Topic 5467 ].

Practice - Topic 5704.1

Judgments and orders - Summary judgments - Effect of - [See Practice - Topic 5467 ].

Practice - Topic 5729

Judgments and orders - Final judgments and orders - What constitute - [See Practice - Topic 5467 ].

Practice - Topic 8984

Appeals - When appeal available - From final judgment or order - [See Practice - Topic 5467 ].

Cases Noticed:

Leone v. University of Toronto Outing Club et al., [2007] O.A.C. Uned. 190; 2007 ONCA 323, refd to. [para. 7].

R.S. v. R.H. (2000), 139 O.A.C. 378; 52 O.R.(3d) 152 (C.A.), refd to. [para. 9].

Ball v. Donais (1993), 64 O.A.C. 85; 13 O.R.(3d) 322 (C.A.), refd to. [para. 12].

Grand River Enterprises, A Partnership et al. v. Burnham (2005), 197 O.A.C. 168 (C.A.), refd to. [para. 13].

Almrei v. Canada (Attorney General), [2011] O.A.C. Uned. 687; 345 D.L.R.(4th) 475; 2011 ONCA 779, dist. [para. 15].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 21, footnote 1].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Rules of Civil Procedure (Ont.), rule 20 [para. 7].

Counsel:

Lise Favreau and Chantelle Blom, for the appellant;

John Bruggeman, for the respondents.

This appeal was heard on May 17, 2013, before Simmons, Hoy and Strathy, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was released on June 6, 2013.