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 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
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