Ontario Civil


Depriving respondent of ability to use judge’s findings of fact could deprive him of substantive rights

Respondent brought action for damages, alleging negligent investigation, false imprisonment and breaches of rights under Canadian Charter of Rights and Freedoms. Respondent, as subject of two security certificates issued under Immigration and Refugee Protection Act (Can.), held in custody for many years. Mosley J. held that second certificate unreasonable. He issued lengthy public reasons but also gave secret reasons to which respondent never obtained access. Respondent applied for partial summary judgment on basis of issue estoppel, claiming parties bound by Mosley J.’s findings that made out elements of causes of action. Motion judge dismissed application. In doing so, he noted that respondent attempting to use doctrine of issue estoppel as sword to obtain summary judgment rather than traditional use as shield or defence. Attorney General sought to quash respondent’s appeal, arguing no appeal could be taken from interlocutory motion. Motion to quash dismissed. In many circumstances decision dismissing motion for partial summary judgment will be interlocutory because merits of claim remain to be tried, but effect of motion judge’s decision was to finally determine question of issue estoppel and prevent respondent from using findings of fact made by Mosley J.. Hearing conducted by Mosley J. involved hearing of evidence that respondent may never be in position to call or even access. Depriving respondent of ability to use Mosley J.’s findings of fact could therefore deprive him of substantive rights. Finding that issue estoppel not available was final determination of that issue of law. Motion to quash dismissed.

Almrei v. Canada (Attorney General)

(Dec. 13, 2011, Ont. C.A., Rosenberg, Cronk and Watt JJ.A., File No. M40628 (C53707)) 210 A.C.W.S. (3d) 294 (5 pp.).

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