COURT OF APPEAL FOR ONTARIO

CITATION: Saumur v. Antoniak, 2016 ONCA 851

DATE: 20161114

DOCKET: C60403

Blair, Epstein and Huscroft JJ.A.

BETWEEN

Dean Saumur, an infant under the age of 18 years
    by his Litigation Guardian, Janet Saumur, and the said Janet Saumur

Plaintiffs

(Respondents)

and

Luba Antoniak, Lester Antoniak and
City of
    Hamilton

Defendants

(
Appellant
)

Earl A. Cherniak Q.C. and C. Kirk Boggs, for the
    appellant

Robert J. Hooper and Mary K Grosso, for the respondents

Heard: November 2, 2016

On appeal from the judgment of Justice J.A. Ramsay of the
    Superior Court of Justice, dated April 13, 2015.

ENDORSEMENT

[1]

The respondent Dean Saumur was badly injured when struck by a car while
    crossing a busy street in Hamilton on his way to school on May 14, 2002.  He
    was almost 10 years old at the time.

[2]

The City of Hamilton had committed itself to staffing the crosswalk
    where the accident occurred with a crossing guard between 8:20 AM and 8:40 AM
    on school days. It is not contested that the crossing guard was not on site
    when Dean crossed the road, and that, if Dean were crossing the road during the
    time when the crossing guard was to have been on site, the City is liable.

[3]

The trial focussed on two issues relevant to this appeal: (i) at what
    time did the accident occur (i.e., did it occur during the period of time when
    the crossing guard was to have been present); and (ii) should Dean be found to
    be contributorily negligent?

[4]

After reviewing and weighing the evidence of four witnesses who saw the
    accident and six witnesses who did not but who gave testimony relevant to the
    issues (including the crossing guard, whose evidence he did not accept), the
    trial judge found that Dean had crossed the road during the period of time when
    the crossing guard should have been present, but was not. He also held that
    Dean was not contributorily negligent.

[5]

In what is almost entirely a factually-based appeal, the City contests
    these findings. In our view, the trial judge made no palpable and overriding
    error of fact or of mixed fact and law, nor did he err in law, in finding that
    the accident occurred within the relevant time period or in failing to hold
    that Dean was contributorily negligent.

The Timing of the Accident

[6]

The witnesses gave conflicting testimony about when the accident took
    place. Much of it was given in the form of estimates or approximations. It was
    the trial judges task to resolve these conflicts. Whether he could have taken
    another view of the evidence is not the point. He resolved the conflicts as he
    saw the evidence and conducted an appropriate analysis, without error, in our
    view, in doing so. There was ample support in the record for his findings and
    conclusions.

[7]

One need look no further than the evidence of the witness, Marc Schulze
    as a starting point. Mr. Schulze was driving towards the crosswalk when the
    accident occurred and saw it happen. He stopped, took the time to park his car
    in a way that would protect Dean, who was on the road, and then looked at the
    clock in his car. The clock read 8:38 AM. Mr. Schulze had received training
    through the fire department to be alert to when accidents occur. This evidence
    was not challenged on cross-examination and was accepted by the trial judge.

[8]

Notwithstanding this, the appellant submits that the trial judge could
    not rely on the time indicated by Mr. Schulzes clock or on his evidence
    without weighing it against the other evidence with respect to timing, which
    the appellant says establishes that the accident must have occurred after 8:40
    AM when the crossing guard was not required to be on site. Had the trial judge
    conducted a proper analysis of the conflicting testimony, as he was obliged to
    do, according to the appellant, he would have realized that this was so.

[9]

The trial judge did not rely solely on the evidence of Mr. Schulze,
    however, and he carefully reviewed the evidence of each of the witnesses and
    conducted an analysis of the conflicting positions with respect to when Dean
    arrived at the crosswalk, including the time it would have taken for him to
    walk from his home to the cross walk, the manner in which he was walking  was
    he hustling or scurrying because he thought he would be late?  and, in
    particular, the timing of the 911 call which everyone agrees was at 8:42:58 AM.

[10]

Tori Pomerleau made the 911 call, upon which the appellant places great
    emphasis. Tori was 13 years old at the time. She and her younger brothers went
    outside at about 8:35 AM or 8:40 AM and were standing on their driveway close
    to their house when she saw Dean passing by the neighbours yard. He appeared
    to be scurrying but not running and looked as if he were in a hurry. She turned
    to her brothers as he went past and then heard a noise and turned around and saw
    Dean flying through the air. She then went along her driveway to where he was
    lying to see if he was okay  she was kind of in shock staring at him and
    seeing the blood coming out of his nose -- and observed the driver of the car
    that struck him pull over to the side of the road. A woman got out of her car
    and yelled at her to call 911. She ran to her house, fumbled with her keys to open
    the door, and ran through the hallway to the kitchen where the phone was located
    to make the call. As noted, it was placed at 8:42:58 AM. Tori estimated that
    all of this took two or three minutes.

[11]

The trial judge found that Toris evidence did not preclude the accidents
    having happened before 8:40 AM, given that her estimate of two or three minutes
    was approximate, that she was shocked by the accident, that she ran to the boy,
    looked at him, no doubt watched what Mr. Schulze was doing (he was attending to
    Dean) for a time, had to be asked to call 911, ran to the house, fumbled with her
    keys and perhaps had to wait for the 911 operator to pick up the phone. He
    found that Tory could easily have taken more than three minutes to get through
    to 911.

[12]

Fastening on the 8:38 AM reading on the clock in Mr. Schulzes car, the
    appellant argues that, if the accuracy of that reading is accepted, it must
    have taken Tori almost five minutes to do what she said she did. The appellant
    says it is inconceivable this could be the case and therefore the trial judges
    analysis is undermined. We do not accept this argument. The evidence, and
    common experience relating to the inaccuracies of peoples estimates of time,
    could well lead to a different conclusion.

[13]

In any event, the argument misses the point. The issue is whether it
    took Tori more than two minutes and 58 seconds to make the call. If it did, the
    accident occurred prior to 8:40 AM. On Toris own estimate of two or three
    minutes, it was open to the trial judge to find that the accident occurred
    three minutes before the 911 call, namely at 8:39:58 AM  and this is without
    leaving any margin for the fact that the crossing guard was obliged to remain
    on site after 8:40 AM if she saw a child within sight of the crosswalk,
    something that would add a further period of time for Dean to reach the
    crosswalk under her watch.

[14]

The appellant places some emphasis on the trial judges comment that
    Tori no doubt watched what Marc Schulze was doing for some brief period of
    time, submitting that there was no evidence to that effect. We do not think
    this observation has much bearing on the overall timing of the events or that
    it undermines the trial judges view of the timing of the 911 call. Nor do we
    think the trial judge erred in rejecting the evidence of Susan Round who
    testified that she heard the schools 8:40 AM bell when Dean was still walking
    down the sidewalk towards the cross-walk. He was entitled to reject that
    evidence and, in any event, as noted above, the evidence was that even if Dean
    had been walking towards the crosswalk and was in sight of the crossing guard,
    although not yet at the crosswalk, the crossing guard would have been required
    to have stayed after 8:40 AM to help the child across the road.

[15]

In addition, the appellant criticizes the trial judge for not
    specifically addressing the evidence of the witness, Mr. de Groote, in the
    course of the analysis portion of his reasons regarding the timing of the
    accident. The trial judge was clearly alive to that evidence, however, as he
    had reviewed it earlier in his reasons, and the probative value of his evidence
    on the timing issue was uncertain in any event. Mr. de Groote testified that
    when he drove his children to school and passed the intersection the crossing
    guard was in place and that they arrived at the school just before he heard the
    8:40 AM bell. When he returned, the accident had already happened. All of this
    took up to four minutes, but Mr. de Groote did not say when it was, within that
    potential four minute span, that the bell rang. A trial judge is not obliged to
    refer to each and every piece of evidence in the course of his or her reasons,
    and we see no palpable and overriding error in the absence of a specific
    reference to Mr. de Grootes evidence in the analysis portion of the trial
    judges reasons.

[16]

The trial judges analysis of the timing issue did not stop with the
    combination of the evidence of Mr. Schulze and Tori Pomerleau. He added to the
    mix  as he was entitled to do  the evidence relating to the time it would
    have taken Dean to travel from his house to the crosswalk. He accepted the
    evidence of Deans mother that Dean left home at 8:30 AM. On the basis of the
    evidence relating to the various scenarios [regarding] distances, slow, medium
    and fast average walking speeds and Deans time of departure from home, he
    concluded that it would have taken Dean 7 minutes from the time of his
    departure to the time of his arrival at the crosswalk and that it was very
    unlikely that Dean arrived at the crosswalk after 8:40 AM. These findings were
    open to the trial judge on the record.

[17]

In conclusion, while the appellant seeks to put a different gloss on the
    evidence, there was ample evidence to support the findings made by the trial
    judge.

[18]

Recognizing, no doubt, that the appeal on the timing issue is factually
    based, Mr. Cherniak argued that the trial judge erred in law in failing to
    conduct the type of analysis of the evidence that he was mandated to do,
    thereby leading to the palpable and overriding errors of fact the appellant
    submits he made. In this respect, he relied on the following passage from
Faryna
    v. Chorny
, 1951 CarswellBC 133 (B.C.C.A.), at para. 10, regarding the test
    for determining the credibility of interested witnesses:

The test must reasonably subject [the witness] story to an
    examination if its consistency with the probabilities that surround the
    currently existing conditions. In short, the real test of the truth of the
    story of a witness in such a case must be its harmony with the preponderance of
    the probabilities which a practical and informed person would readily recognize
    as reasonable in that place and in those conditions.

[19]

The trial judge did not cite any jurisprudence to that effect in his
    reasons.  Reading those reasons as a whole, however, we are satisfied that he
    conducted just such an exercise in his review and analysis of the testimony in
    relation to the issues he addressed. We would not give effect to this argument.

[20]

Much time was spent on the appeal re-arguing the submissions that were
    made to the trial judge and inviting us to re-weigh the evidence led at trial
    and come to a different conclusion. We cannot do that. While another judge may
    have come to different conclusions based on the record, it was this trial
    judges call on the evidence and his findings are amply supported by the
    record. It is not this Courts role to re-parse what happened on a second by
    second basis, as the appellant would have us do.

[21]

We reject this ground of appeal.

Contributory Negligence

[22]

The trial judge declined to make a finding of contributory negligence
    against Dean in the circumstances. It may be surmised that he recognized this
    was a close call because his final conclusion was that [c]ontributory
    negligence is not proven on the preponderance of the evidence.

[23]

The parties agree that the test to be applied in determining negligence,
    including contributory negligence, in the case of children is that articulated
    by this Court in
Nespolon v. Alford,
1998 CarswellOnt 2654 (C.A.), at
    para 53:

In determining the appropriate standard of care for children,
    the test is whether a child exercised the care expected from children of like
    age, intelligence and experience (
McErlean v. Sarel
(1987), 61 O.R.
    (2d) 396 (Ont. C.A.), at pp. 411-12 and
McEllistrum v. Etches
, [1956]
    S.C.R. 787 (S.C.C.);
Heisler v. Moke
(1971), [1972] 2 O.R. 446 (Ont.
    H.C.) at p. 448 (per Addy J.), see also
Downing v. Grand Trunk Railway
(1921), 49 O.L.R. 36 (Ont. H.C.) at p. 40).  This is both an objective and
    subjective standard, which acknowledges the need for individualized treatment
    along with the need for consistency in the law.

[24]

The parties also agree that, at an age just shy of his 10
th
birthday, Dean was old enough for a finding of contributory negligence to be
    made against him.  They disagree, however, on whether such a finding should
    have been made on the facts of this case.

[25]

Mr. Boggs points to a number of findings made by the trial judge and
    submits that, on these findings alone, a finding of contributory negligence
    should have been made.  These included the findings that:

(a) Dean was a boy of average
    intelligence;

(b) he had walked to school for some
    months and had been taught to look both ways before crossing and to follow the
    crossing guards instructions;

(c) his rain hood would not have
    prevented him from seeing left if he had remembered to look left before he crossed;

(d) he did not remember to look left
    before he crossed; and,

(e) he knew better.

[26]

However, the trial judge made other findings as well that related to
    whether Dean had exercised the care expected from children of like age,
    intelligence and experience. He was not satisfied that Dean had experience
    with crossing a busy four-lane highway unsupervised. The appellant contests
    this finding, arguing that there was evidence of Dean having done so before. It
    does not follow, however, that Dean was experienced in crossing busy streets
    as a result of this, and we are satisfied the trial judges finding in this
    regard was open to him on the evidence.

[27]

The substance of the trial judges basis for his finding on contributory
    negligence is found in the concluding paragraph of his reasons on this issue
    keeping in mind that he had already completed his full analysis of the incident
    and the timing of the incident:

Based on my assessment of the witnesses and their evidence, I
    find that Dean walked at a normal pace to the crosswalk, speeding up a bit
    before he arrived. He was not necessarily walking with his head down at this
    point. He may have seen the Antoniak vehicle as he walked south, but if he did
    he was not equipped at his age to judge distance and speed.  Or he may not have
    seen it because he forgot to look left before he crossed.  He knew better, but
    children are notoriously forgetful when they are distracted or confused.  I
    think that Dean was confused because he arrived at the crosswalk and there was
    no crossing guard to help him.  He did not dart into traffic. I accept that Marc
    Schulze saw him standing in or near the crosswalk, which implies that his
    action of turning right and stepping into the roadway was interrupted for at
    least a perceptible moment. Dean stepped into the lane at a quick walk or jog
    and got a few step[s into the lane when he was struck.  I am not satisfied in
    all this that Dean acted below the standard of a reasonably prudent 10-year old
    of like intelligence and experience. Contributory negligence is not proven on
    the preponderance of the evidence.

[28]

The appellant quarrels with certain aspects of this conclusion,
    particularly the references to Dean not [being] equipped at his age to judge
    distance and speed, the comment that children are notoriously forgetful when
    they are distracted or confused, and the finding that Dean was confused
    because he arrived at the crosswalk and there was no crossing guard to help him.
    The appellant says there was no evidence to support these observations or
    findings and that being forgetful, distracted or confused is not an excuse for
    negligence but rather an
indicia
of it.

[29]

The trial judge heard all of the evidence, however  including,
    importantly, the testimony of Dean and Tori and other witnesses who were
    children at the time of the accident. He was entitled to draw inferences from
    what he determined to be the dynamics of the events as they occurred, and to
    apply his experience and common sense in doing so. On this basis, and given the
    record, he was entitled to draw the inferences and come to the conclusions referred
    to above, in our view. That children lack the judgment of adults and that they
    are notoriously forgetful when they are distracted or confused, and therefore
    do not follow instructions on the basis of which they should know better, are
    concepts that are generally accepted and that have been recognized by the
    courts as factors distinguishing the conduct of children from that of adults in
    the negligence liability context: see, for example,
Gonzalez (Guardian ad
    litem of) v. Stewart
, 1995 CarswellBC 2403 (B.C.S.C.);
Bourne
    (Guardian ad litem of) v. Anderson
, 1997 CarswellBC 667 (B.C.S.C.). As
    this Court noted, in
Nespolon v. Alford
, at para. 53, the standard of
    care for children in situations such as this is both an objective and
    subjective standard, which acknowledges the need for individualized treatment
    along with the need for consistency in the law.

[30]

As the paragraph cited above demonstrates, the trial judge applied the
    correct legal standard of care as set out in
Nespolon
, namely the
    standard of a reasonably prudent 10-year old of like intelligence and
    experience. From the application of that standard his finding that no
    contributory negligence should be attributed to Dean was factually driven.
    While another finding may have been available on the evidence, the trial judge
    made no reversible error of fact or mixed fact and law in arriving at his
    findings and the conclusions he did on the contributory negligence issue.

Disposition

[31]

For the foregoing reasons, the appeal is dismissed.

[32]

The respondents are entitled to their costs of the appeal, fixed in the
    amount of $25,000 plus appeal disbursements and HST in accordance with the
    agreement of counsel.

R.A. Blair J.A.

Gloria Epstein
    J.A.

Grant Huscroft
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Simpson v. The Chartered Professional Accountants
    of Ontario,

2016 ONCA 806

DATE: 20161101

DOCKET: C62189 & M46549

Laskin, Sharpe and Miller JJ.A.

BETWEEN

Fraser Simpson

Appellant/Moving Party

and

The Chartered Professional Accountants of Ontario

Respondent/Responding Party

Fraser Simpson, in person

Paul Farley and Diana M. Soos, for the respondent

Heard: In writing

Disposition pursuant to Rule
    2.1

ENDORSEMENT

[1]

Since 2009, the appellant, Fraser Simpson, has been involved in legal
    proceedings involving the respondent Institute of Chartered Accountants of
    Ontario (ICAO), operating as the Chartered Professional Accountants of
    Ontario.

[2]

By letter, the ICAO asked this court to dismiss Mr. Simpsons appeal and
    motion pursuant to r. 2.1.01, r. 2.1.02 and/or r. 2.1.03 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194:

2.1.01
    (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding
    appears on its face to be
frivolous or vexatious or otherwise an abuse of
    the process of the court.

2.1.02 (1) The court may, on its own initiative, stay or dismiss
    a motion if the motion appears on its face to be
frivolous or vexatious or
    otherwise an abuse of the process of the court
.

2.1.03 (1) If the court determines that a person who is
subject
    to an order under
subsection 140 (1)
of the
Courts of Justice Act
has
instituted or continued a proceeding without
the order having been
    rescinded or
leave granted for the proceeding to be instituted or continued
,
    the court shall make an order staying or dismissing the proceeding.
[Emphasis added.]

[3]

In response to the ICAOs letter, the Registrar issued a notice under r.
    2.1, advising Mr. Simpson that his proceeding or motion may be stayed or
    dismissed as they appear to be frivolous, vexatious or otherwise an abuse of the
    process of the court.

[4]

Mr. Simpson filed written submissions in response to the notice. These
    were provided to the ICAO, which in turn made written submissions as to why Mr.
    Simpsons appeal and motion should be dismissed.

[5]

For the following reasons, we conclude that Mr. Simpsons appeal and
    motion should be dismissed pursuant to r. 2.1.01 and r. 2.1.02.

(1)

Nature of Mr. Simpsons Appeal and Motion

(a)

Appeal

[6]

In his notice of appeal, Mr. Simpson seeks to appeal from what he
    describes as an order of Corbett J. dated May 18, 2016. There is, in fact, no
    such order  the so-called order is a letter in response to Mr. Simpsons
    request for leave to appeal a decision of the ICAO, which denied Mr. Simpsons
    request for reinstatement to the ICAO. The basis for the request was an order
    by Corbett J. dated May 6, 2014, which provides in part:

THIS COURT ORDERS THAT paragraph 2 of the
    February 28
th
2014 Order is varied to add the following term:

No motion for leave shall be sought
    without first obtaining prior leave to bring that motion by application in
    writing to D.L.Corbett J.,
without notice to any
    responding party.  This written without notice application shall be supported
    by an affidavit of no more than six pages in length setting out the reason(s)
    why Mr. Simpson believes he should be permitted to seek leave to bring a proceeding
    or take a step in a proceeding against any persons entitled to the benefit of
    this order. [Emphasis added.]

[7]

The February 28, 2014 order in question
    provides:

THIS COURT ORDERS THAT the Plaintiff not
    commence or take any steps in any proceeding as against the ICAO or any of its
    agents  without prior leave from a Justice of this Court.

[8]

In his letter of May 18, 2016, Corbett J. denied Mr. Simpsons request, without
    prejudice to a further request with a supporting affidavit, because he had
    failed to give any reason why he should be granted permission to bring the
    appeal in light of his history of bringing meritless proceedings against the
    ICAO and his failure to pay substantial costs awards.

[9]

In his notice of appeal, Mr. Simpson also requests that an order be
    granted setting aside Corbett J.s order dated February 28, 2014, which is
    referenced above. That order was the subject of an earlier appeal to this court.
    Corbett J. granted Mr. Simpson leave to appeal the February 28, 2014 order but
    his appeal was dismissed on December 29, 2014 by the Registrar for failure to
    satisfy an order for security for costs.

(b)

Motion

[10]

By notice of motion, Mr. Simpson sought a stay of enforcement of Corbett
    J.s

May 18, 2016

order as well as other relief. The motion was
    to be heard on June 8, 2016 but did not proceed pending the outcome of the r.
    2.1 procedure.

(2)

Prior proceedings

[11]

To explain the appeal and motion the ICAO seeks to have dismissed, it is
    necessary to provide a brief summary of the protracted proceedings that have
    led to the ICAOs request for dismissal.

[12]

These proceedings all flow from the suspension of Mr. Simpsons ICAO
    membership because he failed to pay his annual membership fee. He applied for
    readmission in December 2007. The application form indicated that the
    readmission fee of $4,202 was paid by a MasterCard in the name of Marshall
    Sone. Mr. Simpson was readmitted to membership on March 24, 2008. Several days
    later, the ICAO received notice that the credit card payment had been reversed
    as Mr. Sone claimed it was unauthorized.

[13]

Since the 2008 credit card transaction, there have been various
    disciplinary and civil proceedings involving Mr. Simpson and the ICAO. He also
    brought civil proceedings against Mr. Sone and his wife. The matter of the
    $4,202 credit card charge comes up time and time again in the various
    proceedings.

(a)

ICAO Professional Misconduct

[14]

In 2009, Mr. Simpson was found guilty of three charges of professional
    misconduct, reprimanded, fined $5,000, expelled from ICAO membership, and
    ordered to pay costs. Mr. Simpson appealed the 2009 ICAO decision to the Appeal
    Committee of the ICAO but failed to order the transcript and so his appeal was
    dismissed in July 2010.

(b)

Small Claims Court Actions

[15]

In 2008, Mr. Simpson sued Mr. Sone and his wife, Jacqueline Saber, in
    Small Claims Court regarding the credit card reversal and obtained judgment for
    $1,000. On appeal to the Divisional Court, the judgment against Jaqueline Saber
    was set aside but the judgment against Mr. Sone was affirmed.

[16]

In a subsequent Small Claims Court proceeding commenced in 2010, Mr.
    Simpson sued a number of defendants, including Mr. Sone, Ms. Saber and the
    ICAO. This action also stemmed from the March 2008 credit card transaction. The
    action against the ICAO was dismissed. The trial judge found that the ICAO was
    correct in suspending him when the method of payment turned out to be
    disallowed, through no fault of theirs and that Mr. Simpson had no legal cause
    of action against the ICAO.

(c)

Superior Court of Justice Action

[17]

In April 2013, Mr. Simpson commenced a proceeding in the Superior Court
    of Justice against a number of parties including the ICAO, various ICAO employees
    and Mr. Sone and Ms. Saber. He claimed, among other things, $4,202 damages for
    monies paid for professional fees.

[18]

In December 2013, Corbett J. dismissed the action against a number of
    the ICAO-related defendants but granted Mr. Simpson leave to amend his
    statement of claim.

[19]

In February 2014, the ICAO brought a motion to strike the amended
    statement of claim and to dismiss the proceeding on the basis that it was
    frivolous and vexatious.

[20]

On February 28, 2014, Corbett J. dismissed the action against the ICAO
    and ordered that Mr. Simpson not commence or take any steps in any proceeding as
    against the ICAO or any of its agents . without prior leave from a Justice of
    this Court. The order granted Mr. Simpson leave to appeal the order.

(d)

Motion to set aside the February 28, 2014 order

[21]

In April 2014, Mr. Simpson brought a motion to set aside or vary the
    February 28, 2014 order. Morgan J. dismissed the motion and commented that
    while it was clear Mr. Simpson was aggrieved that was not a reason to use the
    court system improperly as a means of harassing the opposite side:
2014 ONSC 2558
, at
    para. 27.  He quoted, at para. 26, from the following email sent by Mr. Simpson
    to the ICAO and its counsel:

Subject: Motion scheduling court

I love spending your money!

Have a good weekend, I look forward to insulting you
    all on the 23rd.

(e)

Motion for summary judgment

[22]

In the meantime, on March 24, 2014, Corbett J. granted Ms. Sabers
    motion for summary judgment and, in subsequent reasons dated May 6, 2014,
    granted Mr. Sones motion for summary judgment: 2014 ONSC 2861. In the course
    of his reasons, Corbett J. commented on Mr. Simpsons behaviour at paras. 8 and
    9:

Mr Simpson is clearly using the court system
    as a way to inflict damage on people with whom he is upset.

It is clear  that Mr Simpson continues to put
    ICAO to expense by bringing motions for leave to bring proceedings or steps in
    proceedings, thereby putting ICAO to the cost of counsel to attend for
    scheduling of a leave motion, and attendance at the leave motion itself. This
    must stop.

[23]

Accordingly, Corbett J.s May 6, 2014 order varied his February
    28, 2014 to include the following term:

No motion for leave shall be sought without first obtaining
    prior leave to bring that motion by application in writing to D.L. Corbett J.,
    without notice to any responding party.  This written without notice
    application shall be supported by an affidavit of no more than six pages in
    length setting out the reason(s) why Mr. Simpson believes he should be
    permitted to seek leave to bring a proceeding or take a step in a proceeding
    against any persons entitled to the benefit of this order.

(f)

Appeal to the Court of Appeal

[24]

Mr. Simpson appealed the February 28, 2014 order to the Court of
    Appeal.  By order dated November 6, 2014, the ICAO obtained an order for
    security for costs against Mr. Simpson in the amount of $50,000. In ordering
    security for costs, Epstein J.A. noted that Mr. Simpson had failed to pay costs
    awards against him in favour of the ICAO, which exceeded $30,000. She also
    noted the unchallenged evidence in the record in which [Mr. Simpson] expresses
    his bad faith  his clear intention to harass the Institute and waste the
    Institutes time and money. As to the merits of the appeal, she had grave
    reservations and was of the view that it had little chance of success.

[25]

Mr. Simpson failed to pay $50,000 into court by the stipulated date and
    for that reason, the Registrar dismissed his appeal on December 29, 2014.

(g)

ICAO Proceeding for Reinstatement

[26]

In 2015, Mr. Simpson brought a motion before the ICAO to have the 2009
    disciplinary decision reconsidered and his membership reinstated. Mr. Simpson
    argued that there was fresh evidence relating to the payment of the $4,202.

[27]

In January 2016, the ICAO dismissed his motion for reconsideration,
    which the Discipline Committee found to be entirely without merit.

(i)

Appeal to the Divisional Court

[28]

Instead of appealing the decision to the Appeal Committee of the ICAO,
    Mr. Simpson issued a notice of appeal from the ICAO decision to the Divisional
    Court. One of his grounds of appeal was that the Discipline Committed erred in
    not finding that his professional fees were paid.

[29]

Despite warnings from the ICAO that the appeal route lay to the Appeal
    Committee, he brought a motion to the Divisional Court in April 2016. The
    motion came before Mullins J. on April 21, 2016 but she adjourned the matter to
    Corbett J., as Mr. Simpson had not sought leave to bring the motion as required
    by Corbett J.s order.

[30]

Mr. Simpson then wrote to Corbett J. seeking leave to appeal the 2016
    ICAO decision. By letter dated May 18, 2016, Corbett J. refused the request,
    but invited Mr. Simpson to resubmit his request with the necessary supporting
    affidavit material. Instead of doing so, Mr. Simpson commenced the appeal that
    is now before this court whereby he challenges the order of Corbett J. dated
    May 18, 2016 and seeks to set aside the February 28, 2014 order.

[31]

Mr. Simpson raises two grounds of appeal in his notice of appeal.

[32]

First, he contends that Corbett J. had no jurisdiction to make the
    vexatious litigant order because the relief was sought by motion rather than
    by way of application.

He says the motion judge also erred in
    granting the order on his own initiative without giving Mr. Simpson a chance to
    oppose the relief.

[33]

Second, he submits Corbett J. erred in declaring the credit card
    payment as invalid, and thus denying my request to procure the sales draft from
    the [ICAO].

[34]

Related to the credit card payment, he requests an order compelling the
    ICAO to produce the originating CREDIT CARD SALES DRAFT to the within action,
    including all related correspondence and accounting documentation.

[35]

Mr. Simpson further requests leave to proceed with an appeal to the
    Divisional Court.

Analysis

[36]

In our view, Mr. Simpsons appeal and motion are frivolous and vexatious
    and should therefore be dismissed pursuant to r. 2.1.01 and r. 2.1.02.

[37]

It is clear from the history of these proceedings that Mr. Simpson has
    repeatedly sought to re-litigate issues that have been previously decided. In
    particular, he already appealed the February 28, 2014 order. That appeal was
    dismissed when Mr. Simpson failed to satisfy an order that he post security for
    costs. To permit him to continue with this appeal would be to permit him to
    evade or escape the consequences of failing to post security for costs and this
    courts order dismissing his appeal.

[38]

The issue of the disputed credit card payment and reversal has already
    been the subject of two Small Claims Court actions and an action in the
    Superior Court of Justice. The history of these proceedings amply supports the
    conclusion reached by Corbett and Morgan JJ. and Epstein J.A. that Mr. Simpson
    has abused the legal process by bringing forward claims that have already been
    dismissed.

[39]

Within the past six months, Mr. Simpson has commenced further
    proceedings against the ICAO in both the Divisional Court and the Court of
    Appeal that involve issues that have already been determined and that are not
    brought in the proper forum.

[40]

Furthermore, we note that Mr. Simpson has yet to pay the ICAO any of the
    numerous outstanding costs orders issued against him.

[41]

Everyone is entitled to their day in court but once they have had that
    day, they cannot be permitted to subject other parties to the cost of further
    proceedings attempting to re-litigate issues that have already been decided.

Directions regarding Procedure

[42]

In our view, it is appropriate to make certain observations and
    directions as to how requests made to this court for dismissal pursuant to r.
    2.1 and other r. 2.1 matters initiated by this court should be dealt with.

[43]

Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings
    and motions that on their face are frivolous, vexatious or otherwise an abuse
    of process.  However, the rule is not intended or designed to supplant the
    established procedural mechanism of bringing a motion to quash an appeal for
    want of jurisdiction or for want of merit.  Indeed, a party considering making
    a r. 2.1 request is well advised to consider if the matter would be more
    effectively addressed by the court by bringing a motion to quash and by filing
    the materials required in support of such a motion, rather than by using the
    procedures outlined in r. 2.1.  The court will take into account whether a
    motion to quash is the more appropriate procedural vehicle in deciding whether
    to direct that a notice be sent under r. 2.1.01(3)1.

[44]

If a party chooses to bring a r. 2.1 request, it must be recognized that
    in this court, only a panel of three judges can dismiss an appeal and certain
    types of motions, such as a motion to review an order of a single judge and a
    motion under r. 59.06(2) of the
Rules of Civil Procedure
to set aside
    or vary an order of the court.  This court must have the authority to ensure
    that the material supporting a r. 2.1 request is properly presented to the
    panel. To provide guidance for the future, we consider it appropriate to
    outline the procedure to be followed when invoking r. 2.1.

[45]

Where a party makes a request pursuant to r. 2.1.01(6) for an order
    under r. 2.1.01(1) in the Court of Appeal, the requesting party should send a
    written request, copied to the appellant or moving party, that clearly outlines
    the nature of the appeal or motion and the grounds upon which the requesting
    party relies to have the appeal or motion dismissed. The requesting party
    should also provide to the court and to the appellant or moving party a bound
    volume containing any relevant previous issued and entered orders, including
    any vexatious litigant orders, and the reasons for such orders. These documents
    are needed to permit an assessment of whether a notice should be given under r.
    2.1.01(3)1.

[46]

Where the Registrar gives notice under r. 2.1.01(3)1 to an appellant or
    moving party, that party may file a written submission pursuant to r. 2.1.01(3)2
    responding to the notice within 15 days after receiving the notice. The written
    submission should not exceed 10 pages. If the party is facing possible dismissal
    of an appeal or a motion that must be heard by a panel of three judges, the
    party should file three copies of the written submission with the court.

[47]

Similarly, if a party files a responding submission in accordance with r.
    2.1.01(3)5, the submission should not exceed 10 pages.  For matters that must be
    heard by a panel, the party should file three copies of its responding
    submission and a bound volume of any relevant background documents, such as
    prior issued and entered orders and the reasons for such orders, as well as
    relevant pleadings or other related documents. A copy of the submission and any
    related documents must also be provided to the appellant or moving party.

[48]

These comments are not intended to be taken as being directed at counsel
    for the respondent in this case who did not have the benefit of these
    directions.

Disposition

[49]

Accordingly, we dismiss Mr. Simpsons appeal and motion as frivolous and
    vexatious, pursuant to r. 2.1.01 and r. 2.1.02. Mr. Simpson is prohibited from
    making any further motions related to the appeal or motion without leave of a
    judge of this court.

[50]

The court further dispenses with the need for the ICAO to seek Mr.
    Simpsons approval as to the form and content of this courts order.

[51]

In the circumstances, we decline to award any costs.

John
    Laskin J.A.

Robert
    J. Sharpe J.A.

B.W.
    Miller J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Singh v. Concept Plastics Limited, 2016 ONCA 815

DATE: 20161103

DOCKET: C61374 and C61375

Feldman, Rouleau and Huscroft JJ.A.

BETWEEN

C61374

Jasvir Singh

Plaintiff (Respondent)

and

Concept Plastics Limited

Defendant (Appellant)

AND BETWEEN

C61375

Ranganadan
    Gounder

Plaintiff (Respondent)

and

Concept Plastics Limited

Defendant (Appellant)

Jayson W. Thomas, for Concept Plastics Limited

Lumi Pungea, for Jasvir Singh and Ranganadan Gounder

Heard: May 16, 2016

On appeal from the orders of Justice Kelly P. Wright of
    the Superior Court of Justice, dated October 23, 2015, with reasons reported at
    2015 ONSC 6598 and 2015 ONSC 6599.

Huscroft J.A.:

[1]

Concept Plastics Limited (Concept) appeals from the motion judges
    orders granting summary judgment to the respondent employees, Ranganadan
    Gounder (Gounder) and Jasvir Singh (Singh).

[2]

Both appeals raise similar issues and were heard together. This decision
    deals with both appeals and differentiates the situations of each respondent
    where necessary.

[3]

I would allow the appeals for the reasons that follow.

Background

[4]

This action arises out of Concepts decision to move its plant from
    Mississauga to Brantford in 2014. Gounder and Singh were long-term employees of
    Concept at its Mississauga plant.

[5]

Gounder, then 50 years of age, was employed by Concept for 20 years and
    earned approximately $50,000 per annum plus benefits. Singh, then 51 years of
    age, was employed by Concept for 24 years and earned approximately $45,000 per
    annum plus benefits. Both were informed by letter dated November 21, 2013 that Concept
    would be moving its plant and would cease operations in Mississauga by January
    17, 2014. They were invited to continue their employment at the new location or
    to consider the letter a termination notice. Ultimately, the plant closure did
    not occur until June 30, 2014. Both worked at the Mississauga plant up to and
    including that day.
[1]

[6]

Gounder and Singh both commenced their actions for damages for wrongful
    dismissal under the simplified procedure provided in r. 76 of the
Rules of
    Civil Procedure
,

R.R.O. 1990, Reg. 194
. They then brought
    motions to dispose of their actions by way of summary judgment under r. 20.

[7]

Concept opposed each motion on the basis that there were a number of
    genuine issues requiring trial, and that the procedural constraints under the simplified
    procedure  in particular, r. 76.04  precluded it from putting its best foot
    forward on the summary judgment motions. Rule 76.04 provides as follows:

76.04 (1) The
    following are not permitted in an action under this Rule:

1. Examination for
    discovery by written questions and answers under Rule 35.

2. Cross-examination
    of a deponent on an affidavit under rule 39.02.

3. Examination of a
    witness on a motion under rule 39.03.  O. Reg. 438/08, s. 53.

(2) Despite rule
    31.05.1 (time limit on discovery), no party shall, in conducting oral
    examinations for discovery in relation to an action proceeding under this Rule,
    exceed a total of two hours of examination, regardless of the number of parties
    or other persons to be examined.

[8]

Concept argued that there were credibility disputes concerning: (1)
    whether the respondents had requested extension of their employment; (2) whether
    the respondents were constructively dismissed; and (3) whether the respondents
    took reasonable steps to mitigate their losses. It argued that summary judgment
    was unfair in the circumstances.

The motion judges decision

[9]

The motion judge found that there was no genuine issue requiring a trial
    and granted summary judgment in favour of both respondents. She found that the
    November 21, 2013 letter constituted termination of employment without cause,
    effective January 17, 2014. The motion judge found, further, that on December
    31, 2013, the termination date was extended to May 30, 2014, and that the
    termination date was extended a third time, on June 10, 2014, to June 30, 2014.

[10]

The motion judge concluded that the cumulative effect of the notices and
    updates sent by Concept was to create confusion and uncertainty, and that Gounder
    and Singh had no idea when their employment would end until June 30, 2014.
    She rejected Concepts submission that Singh (or any other employee) was
    driving the decision to extend the termination date. The motion judge found
    that both Gounder and Singh worked beyond the 13-week period for temporary
    extension of termination allowed under s. 6 of
Termination and Severance of
    Employment
, O. Reg. 288/01 and were entitled to fresh notice that they did
    not receive in any event.

[11]

The motion judge found that an 18-month notice period was reasonable for
    Gounder and that a 20-month notice period was reasonable for Singh.

[12]

Concerning Gounder and Singhs duty to mitigate their losses by taking
    reasonable steps to find new employment, the motion judge described herself as
    underwhelmed by their efforts in the first six months following the termination
    of their employment on June 30, 2014. During this period, it appears that Gounder
    took no action to find employment and Singh made only three employment-related inquiries,
    albeit in person. However, the motion judge excused their inactivity on the
    basis that six months was a reasonable period for each respondent to get
    oriented and figure out how to navigate his life forward.

[13]

Although there was evidence that four Concept employees found new
    employment at Kal-Trading, another plastics company in Mississauga - an
    opportunity that neither Gounder nor Singh explored - the motion judge declined
    to draw an adverse inference regarding failure to mitigate against either
    Gounder or Singh.
[2]

[14]

The motion judge stated that she found no evidence to support the
    submission that Gounder was on a holiday in Fiji when he should have been
    attempting to mitigate his losses, and did not accept that Singh had income
    from a trucking business during the mitigation period.

[15]

The motion judge found that both Gounder and Singh made satisfactory
    efforts to find employment from January 2015 onwards, and awarded $84,499.77 in
    damages to Gounder and $82,652.81 to Singh.

Issues on appeal

[16]

Concept does not dispute that the relocation of its operation to Brantford
    constituted a dismissal for which Gounder and Singh were entitled to reasonable
    notice. The issues are: (1) whether the motion judge erred in adjudicating by
    way of summary judgment; and (2) whether the motion judge erred in concluding
    that Gounder and Singh reasonably mitigated their losses.

[17]

In respect of the summary judgment issue, Concept argues that there were
    numerous conflicts in the evidence that raised genuine issues requiring a trial
    that were not referred to or resolved, and that the reasons provided by the
    motion judge failed to address the unfairness to Concept caused by r. 76.04(1),
    which precluded both cross-examination of the respondents on their affidavits
    and the examination of witnesses.

[18]

Gounder and Singh argue that summary judgment was appropriate because
    there were no factual matters in dispute that were material to the decision on
    the central legal issues, and that r. 76.04(1) did not preclude Concept from
    putting its best foot forward on the motion. Gounder and Singh submit that
    Concept had ample opportunity to ask relevant questions on discovery and that
    the motion judges reasons were sufficient.

[19]

In respect of the mitigation issue, Concept argues that neither Gounder
    nor Singh reasonably mitigated their losses, as neither provided a reasonable
    explanation for his failure to seek employment actively during the six months
    following the termination of his employment. Concept argues, further, that
    summary judgment was inappropriate given issues in dispute concerning the
    availability of Gounder for mitigation, Singhs work as a truck driver, and the
    availability of alternative employment at Kal-Trading. Gounder and Singh contend
    that the motion judge was correct to find that they properly mitigated their
    losses.

Analysis

[20]

In my view, the motion judge failed to assess the fairness of deciding
    this matter by way of summary judgment in the context of the simplified rules
    procedural constraints under Rule 76.04.

[21]

It was central to Concepts case that Gounder and Singh were well aware
    of their termination date, and as a result Concept should have been credited
    with providing notice as of December 31, 2013
.

Concepts evidence was that it extended the original January
    17, 2014 termination date to June 30, 2014 in response to a request from a
    group of employees that included Gounder and Singh. Moreover, Concept alleged
    that Gounder and Singh, as senior employees, were at all times aware of the
    developments concerning the move, having both assisted with the move and
    elected to stay until the end of June 2014. In short, there could be no
    confusion as to the date when their work was going to end.

[22]

Rule 76.04(1) establishes significant limitations on Concepts ability
    to prove its case. Gounder and Singhs affidavit evidence conflicted with
    Concepts, but r. 76.04(1) precluded Concept from cross-examining them on (1)
    whether they had requested an extension of their employment; and (2) whether
    they were aware of all of the relevant developments concerning the move.

[23]

Although summary judgment is available in the context of actions brought
    under the simplified procedure, as this court stated in
Combined Air

Mechanical
    Services Inc. v. Flesch
, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 256:

Given that Rule 76 limits discoveries and
    prohibits cross-examination on affidavits and examinations of witnesses on
    motions, the test for granting summary judgment will generally not be met where
    there is significant conflicting evidence on issues confronting the motion
    judge.

[24]

The problem noted by the court in
Combined
    Air

was present in this case. Concept referred to r.
    76.04(1) at several points in its factums and explained how the rule limited its
    ability to adequately respond to the summary judgment motions.
However,
the motion judge's reasons neither referred to these submissions nor
    explained why the constraints imposed by the rule did not prejudice Concept in
    its ability to respond to the motions. This was an error.

[25]

Gounder and Singh contend that Concept overstates the
    effect that r.76.04(1) had on its case, noting that it had the opportunity to
    ask relevant questions on discovery. I do not agree. Concept had limited
    discovery under the simplified procedure prior to the affidavits filed in
    support of a motion for summary judgment. As stated above, credibility was a
    central issue on the motion, and the positions set out by Gounder and Singh in their
    motions clearly conflicted with Concept's evidence on the main points at issue.
    As this court said in
Baywood Homes Partnership v. Haditaghi,
2014 ONCA 450, 120 O.R. (3d) 438, at para. 44, in motions for summary
    judgment where credibility is important:

G
reat care must be taken by the motion
    judge to ensure that decontextualized affidavit and transcript evidence does
    not become the means by which substantive unfairness enters, in a way that
    would not likely occur in a full trial where the trial judge sees and hears it
    all.

[26]

In this case,
the motion judge failed to make
    credibility findings and failed to explain how she resolved the conflicts in
    the evidence. Her
conclusion that Gounder and Singh had no idea when
    their employment would end and were entitled to fresh notice failed to address Concepts
    position.

[27]

Similar difficulties attend the motion judges conclusions on the issue
    of mitigation.

[28]

The motion judge found there was no evidence to support Concepts submission
    that Gounder was in Fiji, and so unavailable to mitigate, but failed to address
    inconsistent statements he made on examination for discovery. There was conflicting
    evidence as to whether Singh was employed as a truck driver during the
    mitigation period, which Singh and another man denied in their affidavits.
    However, Concept was not permitted to cross-examine them on their affidavits. The
    motion judge stated simply that she did not accept Concepts submission that
    Singh had another source of income from a trucking business during the
    mitigation period, but failed to address the conflicting evidence.

[29]

Although there was evidence that four former Concept employees had found
    employment at Kal-Trading, the motion judge said that she was unwilling to draw
    an adverse inference against either Gounder or Singh on this point because she
    had no details to allow her to make a meaningful comparison. It is not clear
    whether the motion judge
drew an adverse inference from Concepts
    failure to call someone from Kal-Trading, even though the rules precluded it
    from being able to compel non-parties to testify on the motion.

[30]

Finally, neither Gounder nor Singh offered an explanation for failing to
    seek employment actively during the first six months following the termination
    of their employment at Concept. Even assuming that a brief cooling-off or
    grace period may be warranted following a wrongful dismissal in some cases,
    there was no evidence on the summary judgment motion that a six-month suspension
    of the mitigation duty was warranted in this case.

Disposition

[31]

For these reasons, I would allow the appeals and dismiss the motions for
    summary judgment.

[32]

I would award Concept costs on each appeal in the agreed amount of
    $5,000, inclusive of taxes and disbursements, and leave costs on the motions
    for summary judgment to be determined by the motion judge.

Released:  November 3, 2016 KF

Grant
    Huscroft J.A.

I
    agree K. Feldman J.A.

I
    agree Paul Rouleau J.A.

[1]

A dispute concerning whether Gounder and Singh may have worked
    beyond this date is not relevant for purposes of this appeal.

[2]
In her decision related to Singh, the motion judge erroneously stated that only
    two former employees found work at Kal-Trading in Mississauga.


COURT OF APPEAL FOR ONTARIO

CITATION: Skunk v. Ketash, 2016 ONCA 841

DATE: 20161110

DOCKET: C62077

Hoy A.C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

Christopher Skunk

Plaintiff (Respondent)

and

Laurel Ketash and
Jevco
    Insurance Company

Defendants (
Appellant
)

Chantal M. Brochu and Douglas Treilhard, for the
    appellant

Edward S.E. Kim, for the respondent

Heard:  September 12, 2016

On appeal from the order of Justice W. Danial Newton of
    the Superior Court of Justice, dated March 22, 2016, with reasons reported at
    2016 ONSC 2019, 130 O.R. (3d) 380.

Hoy A.C.J.O.
:

[1]The
    appellant, Jevco Insurance Company, appeals the dismissal of its summary
    judgment motion. It submits that, in his reasons, the motion judge made a final
    determination of law that is wrong and that will be binding on the trial
    judge.  The respondent, Christopher Skunk, argues that the motion judge did not
    make a final, binding determination in his reasons, the order under appeal is
    not a final order and this appeal should accordingly be quashed for lack of
    jurisdiction.

[2]
I agree with Mr. Skunk. Because the order
    dismissing Jevcos motion for summary judgment is not a final order, an appeal
    lies to the Divisional Court, with leave
.

[3]Before
    setting out my analysis of why the order under appeal is not a final order, I
    will first provide the factual and legal background necessary to understand the
    nuances of the parties arguments on jurisdiction.

A.

Background

(1)

Facts

[4]The underlying
    action arises out of a motor vehicle accident in October 2012. Mr. Skunk
    alleges that he was a passenger in a motor vehicle owned by his spouse, Maureen
    Skunk, but driven by a friend of his, Laurel Ketash. He alleges that the
    accident arose from the negligence of Ms. Ketash, who did not have automobile
    insurance at the time of the accident.

[5]In addition
    to suing Ms. Ketash, Mr. Skunk commenced an action against Jevco pursuant to s.
    265 of the
Insurance Act
, R.S.O. 1990, c. I.8, and a standard Ontario
    Automobile Policy - OAP 1 (the OAP or the Policy) and the optional OPCF 44R
    Family Protection Coverage Endorsement (the Endorsement) issued to his spouse.

[6]In suing
    Jevco, Mr. Skunk sought to recover under the uninsured provisions in the Policy
    and Endorsement. To explain why Mr. Skunk took that route, it is necessary to
    provide some context as to how Ontarios automobile insurance scheme works.

(2)

Applicable Insurance Principles

[7]Automobile
    insurance is compulsory in Ontario:
Compulsory Automobile Insurance Act
,
    R. S. O. 1990, c. C. 25. The purpose of this legislation is to protect victims
    of automobile accidents from having no means of seeking damages from persons
    who might have caused those damages without having the protection of automobile
    insurance:
Matheson v. Lewis
, 2014 ONCA 542, 121 O.R. (3d) 641, at
    para. 36.

[8]The owner of
    a motor vehicle is liable for accidents caused by its operation under s. 192 of
    the
Highway Traffic Act
, R.S.O. 1990, c. H.8, except where subsection
    (2) applies, which provides as follows:

The owner of a motor vehicle or street car
    is liable for loss or damage sustained by any person by reason of negligence in
    the operation of the motor vehicle or street car on a highway,
unless the
    motor vehicle or street car was without the owners consent in the possession
    of some person other than the owner or the owners chauffeur.
[Emphasis
    added.]

[9]
The purpose of s. 192(2)
was noted in
Fernandes v. Araujo,
2015 ONCA 571
,
127 O.R. (3d) 115 (C.A.), at
    para. 20:

[T]he purpose of
    this provision is "to protect the public by imposing, on the owner of a
    motor vehicle, responsibility for the careful management of the vehicle".
The provision is an integral element of the
Highway Traffic Act
's
    mandatory licensing and insurance scheme to ensure the public safety. The owner
    has the right to give possession of the vehicle to another person, but this
    provision "encourages owners to be careful when exercising that right by
    placing legal responsibility on them for loss to others caused by the negligent
    operation of the vehicle on a highway". [Emphasis added.]

[10]

I
f the motor vehicle is driven by
    a person who has the owners consent and is involved in an accident, s. 3.2 of
    the OAP provides coverage: You are covered when you, or anyone else in
    possession of a described automobile with your consent, uses or operates it. We
    will consider these other people insured persons.

[11]

In the normal course, if a person is injured by the operation of the
    motor vehicle in which he or she is a passenger, the vehicle owners insurer
    must respond.

[12]

But some owners fail to insure their automobile, or their insurance is
    voided, and so the automobile is not insured. The
Insurance Act
mandates
    a scheme to provide for limited insurance coverage where the operation of an
    uninsured automobile injures a person. The coverage is provided by the injured
    persons own insurer, but coverage is limited to the minimum required by s. 251
    of the
Insurance Act
, which is $200,000 for liability claims.

[13]

In order to mitigate the consequences of being injured by an uninsured
    or underinsured motor vehicle, purchasers of automobile insurance policies in
    Ontario can buy, for an additional premium, added coverage in the form of the
    OPCF 44R Family Protection Coverage Endorsement.

[14]

Against that background, I now turn to consider Mr. Skunks claim and
    Jevcos motion.

(3)

Mr. Skunks Claim and Jevcos Motion

[15]

Mr. Skunk did not sue his wife because he takes the position that Ms.
    Ketash was driving without Ms. Skunks consent so that under s. 192(2) of the
Highway
    Traffic Act
Ms. Skunk is not directly liable.

[16]

Instead, Mr. Skunk sued Jevco. As he takes the position that his
    spouses vehicle ceased to be insured when Ms. Ketash drove it without Ms.
    Skunks consent, he sued  under the uninsured automobile coverage provisions
    in s. 5 of the Policy, the inadequately insured motorist provisions in the Endorsement,
    and s. 265 of the
Insurance Act
, which defines the term uninsured
    automobile.

[17]

In its statement of defence, Jevco pleads that Mr. Skunk took possession
    of his spouses vehicle without her consent. It also takes the position that
    Ms. Ketash drove the vehicle without Ms. Skunks consent and, as a result, the
    vehicle became uninsured. However, Jevco takes the position that Mr. Skunk is
    excluded from uninsured coverage as the spouse of the vehicles owner based on the
Insurance Act
, the Policy and the Endorsement.

[18]

Section 265(1) of the
Insurance Act
requires that every motor
    vehicle liability policy provide coverage for damages where there is liability
    on the part of an owner or driver of an uninsured automobile. Section 265(2)
    defines uninsured automobile as follows:

uninsured automobile means an
    automobile with respect to which
neither the owner nor driver thereof has
    applicable and collectible bodily injury liability and property damage
    liability insurance for its ownership, use or operation,
but does not
    include an automobile owned by or registered in the name of the insured or his
    or her spouse.

[Emphasis
    added.]

[19]

This definition, which excludes automobiles owned by or registered in
    the name of the insured or his or her spouse, is in turn incorporated in
    virtually identical terms in s. 5 of the Policy and in the Endorsement.

[20]

Section 5 of the Policy provides as follows:

Uninsured Automobile Coverage

5.1 Introduction

5.1.1 Uninsured Automobile Coverage Schedule

This Section of the policy describes the terms and conditions
    of the coverage set out in the Uninsured Automobile Schedule under the
    Insurance Act (Ontario). If there is a difference between the interpretation of
    the wording of this Section and the interpretation of the wording in the
    Schedule, the Schedule prevails. However, 5.3.3 in this Section is an addition
    to the coverage provided by the Schedule.

5.1.2 What is an Uninsured Automobile?

An uninsured automobile is one for which
neither
    the owner nor driver has liability insurance to
cover bodily injury or property damage arising out
    of its ownership, use or operation, or the insurance is not collectible.
    However,
this does not include an automobile owned by or registered in
    the name of the insured person or their spouse.
[Emphasis added.]

[21]

The Endorsement provides as follows:

OPCF
    44R

FAMILY PROTECTION
COVERAGE

1.5 inadequately insured motorist means

(a) the identified owner or
    identified driver of an automobile for which the total motor vehicle liability
    insurance or bonds, cash deposits or other financial guarantees as required by
    law in lieu of insurance, obtained by the owner or driver is less than the
    limit of family protection coverage; or

(b) the driver or
owner of an uninsured automobile or unidentified automobile as defined in
    Section 5, Uninsured Automobile Coverage of the Policy.

1.11 uninsured automobile means an automobile with respect to
    which
neither the
    owner nor driver thereof has applicable and collectible bodily injury liability
    and property damage liability insurance for its ownership, use or operation
but does not include an automobile owned by or registered in the name of the
    insured or his or her spouse.

INSURING AGREEMENT

3. In consideration of a premium of $  or as stated in the
    Certificate of Automobile Insurance to which this change form is attached, the
    insurer shall indemnify an eligible claimant for the amount that he or she is
    legally entitled to recover from an inadequately insured motorist as
    compensatory damages in respect of bodily injury to or death of an insured
    person arising directly or indirectly from the use or operation of an
    automobile. [Emphasis added.]

[22]

Jevco brought a motion for summary judgment in an effort to have Mr.
    Skunks claim against the company dismissed, The narrow issue before the motion
    judge was whether, with respect to Mr. Skunks claim, the vehicle was excluded
    from the definition of uninsured automobile because it was owned by Mr. Skunks
    spouse.

[23]

In response to Jevcos motion, Mr. Skunk argued that, reading the
    Endorsement purposively, an automobile owned by or registered in the name of
    the insured or his or her spouse would be excluded from the definition of an uninsured
    automobile only if the insured or his or her spouse had
chosen

not to insure the automobile. He says that a vehicle taken without consent
    of the owner is an uninsured automobile.

[24]

The motion judge accepted Mr. Skunks argument.

(4)

The motion judges reasons

[25]

The motion judge began his analysis by reviewing
Fosker v. Thorpe
(2004), 72 O.R. (3d) 753 (S.C.), which arose from a r. 21 motion. In
Fosker
,
    a thief, in the course of stealing the plaintiffs car, struck the plaintiff
    with her own car. Applying the principles of statutory interpretation, Quinn J.
    held, at para. 29, that the wording of s. 265(2) of the
Insurance Act
,
    s. 5.1.2 of O.A.P. No.  1 and OPCF 44R is clear and unambiguous. Because the
    car was owned by the insured plaintiff, it was not an uninsured automobile.

[26]

The motion judge disagreed with Quinn J.s conclusion that s. 265(2) is
    clear and unambiguous. And, applying principles of contractual, rather than
    statutory, interpretation to the Endorsement, he concluded that those
    provisions were also ambiguous and should accordingly be construed against Jevco
    and given an interpretation that spreads, rather than closes, the safety net:
    para. 30.

[27]

At para. 34, the motion judge wrote:

I therefore conclude that vehicles owned by the insured or
    spouse, if insured, are uninsured automobiles when taken without consent.
    Therefore, I conclude that Ms. Ketash, if she took the vehicle without consent,
    is an inadequately insured motorist under the [Endorsement].

[28]

It is this conclusion  which Jevco characterizes as a binding
    determination of law  that Jevco seeks to appeal to this court. The motion
    judge concluded para. 34 with the following sentence:

As such, I conclude that there
may
be coverage and Jevcos motion for summary judgment is dismissed. [Emphasis
    added.]

B.

jurisdictional analysis

(1)

This courts jurisprudence

[29]

There is no common law or inherent right of appeal. The
Courts of
    Justice Act
, R.S.O. 1990, c. C. 43, provides for the general appellate
    jurisdiction of this court and the Divisional Court in civil matters: see ss.
    6, 19 and 21.9.1.

[30]

Subject to certain exceptions  none of which are relevant in
    this case  an appeal lies to this court from a final order of a judge of the
    Superior Court of Justice. If an order is interlocutory, rather than final, the
    appeal lies to the Divisional Court, with leave:
Cole v. Hamilton (City)

(2002), 60
    O.R. (3d) 284 (C.A.), at para. 15;
Albert v. Spiegel
(1993), 17
    C.P.C. (3d) 90 (Ont. C.A.), at p. 91.

[31]

The reason for the distinction is explained by Paul M. Perell and John
    W. Morden in
The Law of Civil Procedure in Ontario,
2d ed. (Markham: Lexis-Nexis
    Canada Inc., 2014), at p. 910:

¶12.41 In general terms, the policy underlying the distinction
    between interlocutory and final orders is the proportionality principle. For
    judicial decisions that are of comparatively less importance to the parties and
    the public than other decisions (particularly those other decisions that are
    determinative of the outcome of the litigation), there should be no appeal at
    all, or the right of appeal should be curbed by a leave requirement. [Footnote
    omitted.]

[32]

A final order is one that finally disposes of an action or application,
    or that finally disposes of a substantive right of one of the parties:
Hendrickson
    v. Kallio
, [1932] O.R. 675, at p. 680;
Ball v. Donais
(1993), 13
    O.R. (3d) 322 (C.A.), at p. 324;
R.S. v. S.H.
(2000), 52 O.R. (3d) 152
    (C.A.), at para. 13;
Waldman v. Thomson Reuters Canada Ltd.
, 2015 ONCA
    53, 330 O.A.C. 142, at paras. 22-23.

[33]

Regrettably, the question of whether an order dismissing a
    summary judgment motion is a final order is not a novel one. In
V.K. Mason
    Construction Ltd. v. Canadian General Insurance Group Ltd.

(1998), 42 O.R. (3d) 618, Finlayson J.A.
    wrote this, at pp. 623-24 and 625-26:

When parties argue whether orders of this nature are final or
    interlocutory, they appear to lose sight of the fact that there is a remedy
    where the order is interlocutory, although admittedly, it is to another court
    and requires leave. It was apparent from the argument in this appeal that the
    appellant's real concern was not where to appeal the motions court judge's
    order allowing the action to proceed to trial. Rather, the real concern was
    that, unless overturned on appeal, the findings underlying this order would be
    binding on the judge who ultimately tried the action, either because the
    findings are
res judicat
a or raise
issue
    estoppel
, or because, in this particular case, they are so detailed
    and incisive that the trial judge, even if he or she does not feel obliged in
    law to follow them, will show them great deference and adopt them as
    persuasive. The latter consideration may be a sound reason for allowing leave
    to appeal, but it is of no concern to this court. As to
res judicata
or
issue estoppel
in the
    context of a motion for summary judgment that is dismissed, I do not think that
    the motions court judge's reasons should be taken as anything more than his
    explanation for finding that there is a genuine issue for trial. It is the
    finding that there is a genuine issue for trial that is
res judicata
.

Conceptually, it may be difficult to accept that where a
    plaintiff or defendant moves for summary judgment and succeeds, the appeal from
    that summary judgment is to this court as of right whereas if the moving party
    fails to obtain a summary judgment, the order dismissing the motion is to the
    Divisional Court, and only with leave of that court. However, the distinction
    has a long tradition in the law. The summary judgment finally determines the
    issue or issues between the parties and gives rise to a plea of
res
    judicata
in subsequent proceedings on the same issue or issues. An order
    dismissing a motion for summary judgment, on the other hand, determines only
    that there is a genuine issue for trial and the issue or issues have not been
    finally resolved.

[34]

This court reiterated in
Ashak v. Ontario (Director, Family
    Responsibility Office)
,
2013
    ONCA 375, 115 O.R. (3d) 401, at para. 7, that, in general, an order dismissing
    a motion for summary judgment is not a final order because a decision under r.
    20 determines only that a genuine issue requiring a trial exists.

[35]

Purported findings of fact by a motion judge who dismisses a summary
    judgment motion do not have binding effect in the subsequent proceeding unless
    the motion judge invokes her power under r. 20.05(1) to make an order
    specifying what material facts are not in dispute  a power that exists where
    summary judgment is refused or is granted only in part. As this court stated in
Ashak
, where a motion judge proposes to do so, she should specifically
    say so, and the order should refer to r. 20.05(1): para. 8, citing
Leone v.
    University of Toronto Outing Club
, 2007 ONCA 323, at para. 3.

[36]

The same principle applies in the case of questions of law. At paras.11
    and 13 of
Ashak
, the court wrote:

Like the court in
Leone
, it is our view that, if a
    motion judge dismissing a motion for summary judgment proposes to exercise the
    power under rule 20.04(4)
[
[1]
]
to make a binding determination of law, the motion judge should specifically
    invoke the rule, and reference to the rule, as well as the legal determination
    made, should form part of the formal order. In our opinion, the issue of
    whether an order is final or interlocutory should not turn on the forcefulness
    of the reasons for the conclusion.

In our view, in most instances, the content of the formal order
    is integral to determining what has been decided against a party in a fashion
    that is binding.

[37]

Ashak
distinguished
Almrei v. Canada (Attorney General)
,
    2011 ONCA 779, 345 D.L.R. (4th) 475, in which an order dismissing a summary
    judgment motion was found to be a final order, and makes clear that
Almrei
should not be viewed as establishing a general principle that the question of
    whether an order dismissing a motion for summary judgment is final can be
    determined based on a motion judges reasons: para.  15.

[38]

Mr. Almrei had been held in custody for many years on two successive
    security certificates issued under the
Immigration and Refugee Protection
    Act
, S.C. 2001, c. 27. Ultimately, after a lengthy hearing, parts of which
    were held
in camera
or
ex parte
, the second security certificate
    was quashed by Mosely J. Mr. Almrei subsequently commenced a civil action against
    Canada for, among other things, negligent investigation, false imprisonment and
    various
Charter
breaches. He brought a motion for partial summary
    judgment, arguing that
issue estoppel
applied and the parties were bound by the findings made by Mosley J. The motion
    judge dismissed Mr. Almreis motion, explaining that Mr. Almrei sought to
    invoke the doctrine of
issue estoppel
as a sword to obtain summary judgment, rather than as a shield or defence to
    preclude litigation on matters already decided between the parties, and that the
    test for
issue estoppel
had not
    been met.

[39]

This court dismissed the Attorney General of Canadas motion to quash
    Mr. Almreis appeal to this court. At para. 4 of its analysis, this court noted
    that the hearing before Mosely J. involved hearing evidence that Mr. Almrei might
    never be in a position to call or even access. Thus, depriving Mr. Almrei of
    the ability to use the findings of fact by Mosely J. could deprive Mr. Almrei
    of substantive rights.

[40]

At para. 7, this court concluded:

[Mr. Almrei] singled out for resolution the question of use of
issue estoppel
. A finding that
issue estoppel
is not available is a
    final determination of that issue of law. The decision of the motion judge has
    arguably deprived the appellant of a substantive right that could have been
    entirely determinative of the Attorney General's liability.

[41]

In
Ashak
, the court provided three reasons why
Almrei
should not be taken as establishing a general principle that where a judge
    purports to make a legal determination in reasons dismissing a summary judgment
    motion those determinations should be treated as binding.

[42]

First, Mr. Almrei had formally singled out the precise legal issue to be
    decided. Unlike in
Ashak
, the precise scope of the point of law
    determined by the motion judge was clear.

[43]

Second, the determination on the question of issue estoppel potentially
    deprived Mr. Almrei of the ability to prove his case.

[44]

Third, Canada  the party that moved to quash the appeal on the basis
    that the order was interlocutory  maintained that the question of
issue estoppel
was
res judicata
.

[45]

By distinguishing
Almre
i
in that manner, the court left
    open the possibility that, in circumstances paralleling those in
Almrei
,
    a legal determination could be found to be binding, even if not included in the
    formal order.

[46]

In
Fanshawe College of Applied Arts and Technology v. AU Optronics
    Corp.
, 2015 ONCA 808, the motion judge made several determinations of law
    in the course of dismissing the defendants motion for summary judgment. When
    the defendants appealed to this court, the plaintiff moved to quash their
    appeal for lack of jurisdiction.  In the course of its submissions, the
    plaintiff conceded that nothing in the order sought to be appealed, or in the
    reasons of the motion judge in support of that order, precludes the [defendants]
    in any way from advancing at trial their arguments regarding s. 36(4) of the
Competition
    Act
or abuse of process as substantive defences or otherwise. In light of
    that concession, this court quashed the appeal in a three-paragraph endorsement
    on the basis that the order below was interlocutory, and not final.

(2)

Analysis and synthesis

[47]

I conclude that the issue of whether an automobile that has been taken
    without the consent of the owner is excluded from the definition of uninsured
    automobile by reason of the fact that it is owned by or registered in the name
    of the insured or his or her spouse is not
res judicata
, and that the
    motion judges order dismissing Jevcos summary judgment motion is therefore
    not a final order.

[48]

While the formal order in this case was issued nearly three years after
Ashak
was decided, it simply provides that the motion is dismissed and orders costs
    of the motion payable to Mr. Skunk. And  in face of
Ashak
 the motion
    judge did not invoke r. 20.04(4) and declare that an automobile that has been
    taken without the consent of the owner is not excluded from the definition of
    uninsured automobile by reason of the fact that it is owned by or registered
    in the name of the insured or his or her spouse.

[49]

Nor is it clear from examining the motion judges reasons, as Jevco
    urged this court to do, that the order under appeal is final.

[50]

Despite expressing a conclusion about the interpretation of the Endorsement
    in his reasons, the motion judge simply determined that there may be
    coverage. As I explain below, it is not clear that the motion judge did not
    simply conclude that there was a genuine issue for trial as to whether or not Mr.
    Skunk is entitled to coverage.

[51]

Jevco argues that the motion judge used the word may in his reasons
    because, albeit mistakenly, he thought that the issue of whether or not the
    vehicle was driven without the consent of Ms. Skunk would be a live issue at
    trial. Jevco points to the motion judges use of the word if at para. 34: Therefore,
    I conclude that Ms. Ketash,
if
she took the
    vehicle without consent, is an inadequately insured motorist (emphasis added).

[52]

At para. 3 of his reasons, the motion judge wrote that the vehicle  became
    uninsured when it was taken without consent by the defendant Ketash. However,
    after reciting the facts as recounted in Mr. Skunks factum, the motion judge
    wrote the following phrase, at para. 11, giving rise to Jevcos argument:  On
    these facts, it is not clear that there is a lack of consent.

[53]

As I have said, Mr. Skunks position is that Ms. Ketash drove Ms.
    Skunks vehicle without her consent. Lack of consent is necessary if Mr. Skunk
    is to succeed in his claim for coverage on the basis that the vehicle is an
    uninsured automobile. And Jevco concedes this element: it specifically pleads
    in its statement of defence that Mr. Skunk took his spouses vehicle without
    her consent. Thus, as the parties submit, the question of consent is not an
    issue for trial.

[54]

Jevcos explanation of why the motion judge used the words if and
    may is plausible. However, the motion judges reasoning is unclear.  Another
    plausible explanation is that the motion judge understood that the question of
    consent was not an issue for trial and used the word if because he did not
    want to appear to endorse what the parties had agreed amounted to lack of consent.
    And, if that interpretation is accepted, then may is consistent with his
    determining only that there is a genuine issue for trial.  Given this ambiguity
    in the motion judges reasons, his conclusions should not be taken as anything
    more than his explanation for finding that there is a genuine issue for trial.

[55]

While not determinative in and of itself, Mr. Skunks concession is
    consistent with my view that the order under appeal is interlocutory. Despite
    the fact that it is against his interests at trial, he conceded that the issue of
    whether the vehicle is an uninsured automobile is not
res judicata
and that the trial judge is free to follow
Fosker
and conclude that it
    is not an uninsured automobile because it is owned by his spouse.

[56]

The debate about the interpretation of the motion judges reasons
    highlights the wisdom of
Ashak
. Had the motion judge specified that he
    was making a determination of law that was binding on the trial judge, or if
    the parties had prepared a form of order in accordance with
Ashak
,
    this court would have had jurisdiction to hear the appeal. Jevco  like Mr.
    Almrei  singled out a specific legal issue to be determined, and the issue
    if resolved in Jevcos favour  would have been determinative of the action.

[57]

To understand the parties submissions on whether the motion judge had
    made a binding determination of law, it was necessary to delve into the substance
    of the appeal.  Having done so, the temptation is to find jurisdiction and rule
    on the merits, which would avoid the need for a further attendance by the parties.
    The efficiencies of time and cost for the parties are obvious. However, it
    would take away from the force of this courts directive in
Ashak
and
    increase the considerable uncertainty about when an appeal of the dismissal of
    a summary judgment motion lies to this court. That confusion results in costs
    and inefficiencies  to both litigants and the court system  on a wider scale.
    Post-
Hryniak
, the volume of summary judgment motions, and,
    anecdotally, the volume of appeals from the dismissal of summary judgment
    motions, have increased. Greater clarity is needed.

[58]

In an attempt to provide greater clarity, I would summarize the effect
    of this courts jurisprudence as follows:

1.

The general rule is that an order dismissing a motion for summary
    judgment is an interlocutory, and not a final, order.

2.

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 this court will
    consider whether the motion judges order invokes r. 20.04(4) and references
    the legal determination that the party argues is a Binding Legal Determination.

3. 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 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. In this case, it was not clear that the
    motion judge intended his determination to be binding on the parties at trial.

[59]

I make two additional points.

[60]

First, consistent with this courts directions in
Ashak
, in the
    absence of an express indication by the motion judge that her determination is
    to be binding on the parties at trial, it should be presumed that in expressing
    a conclusion on a point of law when dismissing a summary judgment motion she is
    simply explaining why she concluded that there is a genuine issue requiring a trial,
    and did not intend her determination to be binding on the parties.

[61]

Second, while this court may take into account a partys concession that
    an issue is or is not
res judicata
in determining whether an order is
    final or interlocutory, a concession cannot confer or deprive the court of
    jurisdiction. I do not read either
Almrei
,
Ashak
or
Fanshawe
as suggesting otherwise.

[62]

The daily workload of Superior Court motion judges is heavy. Nonetheless,
    when dismissing a summary judgment motion, I would urge them to specifically
    consider to what extent they are making determinations of law intended to be
    binding on the parties at trial, and, if they are intending to make such
    determinations, invoke r. 20.04(4) and make clear in their orders and reasons
    that the determination is intended to be binding on the parties at trial.

C.

Disposition

[63]

I would accordingly quash this appeal for lack of jurisdiction. In the
    circumstances, I would make no award of costs.

Released: AH  NOV 10 2016

Alexandra Hoy
    A.C.J.O.

I agree P. Lauwers
    J.A.

I agree M.L. Benotto
    J.A.

[1]

Rule 20.04(4) provides: Where the court is satisfied that the
    only genuine issue is a question of law, the court may determine the question
    and grant judgment accordingly, but where the motion is made to a master, it
    shall be adjourned to be heard by a judge.