Case: SPM Charters Inc. v. Flightpath Charter Airways Inc., 2026 ONCA 471 (CanLII)
Keywords: summary judgment; Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839; Hryniak v. Mauldin, 2014 SCC 7
Synopsis:
The Motion Judge (Valente J.) hears argument over 10 days and reviews an extensive paper record. He finds he cannot grant summary judgment because:
- there was factual evidence missing; and
- there were credibility issues that could not be resolved without viva voce evidence. (See para. 1).
The Motion Judge does not “make an order specifying what material facts are not in dispute and defining the issues to be tried, and order that the action proceed to trial expeditiously” or “give such directions or impose such terms as are just” pursuant to Rule 20.05. (See paras. 3-4). In other words, despite declining to provide summary judgment in either party’s favour, the Motion Judge also did not order that a trial proceed before him or invite further submissions.
The Appellant seeks an order requiring the Motion Judge or another judge to try the action without permitting any new evidence to be adduced. The Respondent says evidentiary shortfalls must be remedied by additional evidence. (See para. 6). The Court of Appeal (Tulloch C.J.O., Lauwers, and Miller JJ.A.) finds the Motion Judge erred by not inviting further submissions. As a practical solution, the Court affirms the order but remits the case back to the Motion Judge or another judge to be determined by the Regional Senior Judge. (See para. 5).
Importance:
A preliminary question arose as to whether the Motion Judge’s decision was interlocutory or final. For the Court of Appeal, since the order did not resolve the case or dispose of any substantive grounds, it was interlocutory. That meant the appeal “properly lies” to the Divisional Court pursuant to s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
In this case, however, the Court of Appeal chose to reconstitute itself as the Divisional Court “under s. 13 of the Courts of Justice Act, with the permission of the Chief Justice of Ontario and the concurrence of the Acting Chief Justice of the Superior Court of Justice”. (See para. 2; Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839 at para. 13). For the Court of Appeal, this was necessary to “avoid the waste of judicial and party resources that would attend argument of this appeal before the Divisional Court”. (See para. 2).
The Court described the question (i.e., what should happen next given the undecided outcome) as an “issue of first impression”. (See para. 3). The Court mentioned that the Motion Judge “did not advert to the principles set out by the Supreme Court in Hryniak v. Mauldin” and that it would have been “more consistent” with summary judgment principles to direct a full trial before him. (See para. 4). However, this step was never presented to the Motion Judge because he “did not invite further submissions after concluding that he could not resolve the outstanding issues summarily and in declining to remain seized”. For the Court, this was an error. (See para. 4).
In the result, the Court remitted the matter back to the Motion Judge or to another judge. (See para. 5). It would appear from the Court’s comments that, where a Motion Judge does not grant summary judgment but also does not provide sufficient guidance as to next steps, the practical solution is to invite further submissions until a decision can be made. However, the Court’s comments at para. 6 also suggest that it is the “appointed trial judge” that gets to determine “how to structure the trial in light of the evidence already received in a case management meeting with the parties”. (See para. 6). This suggests that, in accordance with the principles in Hyrniak at paras. 74-49, the likely result of those further submissions may be to direct a full trial.
Counsel for the Appellants: Yuxi (Wendy) Sun and Christopher Liang (DLA Piper, Toronto)
Counsel for the Respondent SPM Charters Inc.: Carol Dirks (Fogler Rubinoff LLP, Toronto)
Counsel for the Respondent Flightpath Charter Airways Inc.: Dessa Booth (Alexander Holburn, Toronto)