In Arminak & Associates Inc. v. Apollo Health and Beauty Care, an October 3, 2014 decision by D.M. Brown J., it was held that a party to a summary judgment motion cannot seek leave to appeal a ruling made by a motion judge during the course of a motion, before the motion judge has finally disposed of the motion.
The plaintiffs brought a motion for summary judgment. The motion judge adjourned the motion and gave directions about the delivery of further evidence. He also required the parties to agree upon a schedule for the continuation of the motion.
Instead of complying with the order, the plaintiffs served a notice of motion seeking leave to appeal the interlocutory order of the motion judge to the Divisional Court pursuant to Rule 62.02(4) of the Rules of Civil Procedure.
In reaching his conclusion that the appeal was premature, D.M. Brown J., relied on the Supreme Court of Canada’s observations in Hryniak v. Mauldin: “The Ontario Rules and a superior court’s inherent jurisdiction permit a motion judge to be involved early in the life of a motion, in order to control the size of the record, and to remain active in the event the motion does not resolve the entire action.”
D.M. Brown J. observed that pre-disposition appeals of summary judgment motions, “seriously offend the fundamental principle set out in Rule 1.04(1) that courts must act to secure the fair, timely and cost-effective determination of civil proceedings on their merits.”