Canada: When Are Conclusions of Law Made in a Summary Judgment Motion Binding on the Trial Judge?

Last Updated: March 13 2017
Article by Marco P. Falco

As summary judgment motions become the more common way for parties to resolve their disputes, Ontario Courts have had to deal with the consequences of a failed motion. A recent decision of the Ontario Court of Appeal, Skunk v. Ketash, 2016 ONCA 841, answers the question of whether a judge who dismisses a motion for summary judgment has in fact made conclusive rulings of law that will later bind the trial judge.

Skunk involved a motor vehicle accident. The plaintiff was a passenger in a car owned by his wife, but driven by his friend. In addition to bringing an action against his friend, the plaintiff sued his insurer pursuant to the uninsured provisions of the policy. He argued that since his friend was driving his wife's vehicle at the time of the accident without his wife's consent and his friend did not have insurance, he was entitled to coverage under his uninsured automobile policy. The insurer brought a motion for summary judgment to dismiss the husband's claim.

The issue before the motions judge was whether the vehicle was excluded from the definition of "uninsured automobile" under the policy because the car was owned by the insured's spouse, i.e. wife. The plaintiff argued that a vehicle taken without the consent of the owner was an "uninsured automobile" under the policy.

The motions judge upheld the plaintiff's position and dismissed the insurer's motion for summary judgment:

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


As such, I conclude that there may be coverage and Jevco's motion for summary judgment is dismissed [emphasis added]

The insurer appealed the motion judge's ruling to the Court of Appeal. One of the issues on appeal was whether the Court of Appeal lacked the jurisdiction to hear the matter because the decision was not a "final" order. The plaintiff argued that the motions judge did not make a final ruling on the central legal issue in dismissing the insurer's motion for summary judgment and therefore the order was interlocutory. As such, the plaintiff argued that the Divisional Court, and not the Court of Appeal, was the proper forum for the appeal and that the appeal could only be heard with leave of the Divisional Court.

The Court of Appeal agreed with the plaintiff and quashed the appeal for lack of jurisdiction. It held that the motion judge did not make a final ruling on the issue of whether an automobile that has been taken without the consent of the owner is excluded from the definition of "uninsured automobile" where it is owned by the insured or the insured's spouse. The motion judge's ruling on the legal issue was therefore not a final order.

When Do Summary Judgment Judges Make Final, Binding Orders?

The Court of Appeal began its analysis by citing its previous decision, Ashak v. Ontario, 2013 ONCA 375, for the proposition that, in general, an order dismissing a motion for summary judgment is not a final order because the decision only determines that a genuine issue for trial exists.

However, where a judge makes findings of fact in the course of dismissing a motion for summary judgment, those findings of fact do not have any binding effect in a further proceeding unless the motions judge invokes Rule 20.05(1). This Rule provides that where summary judgment is refused or is granted in part, the court "may make an order specifying what material facts are not in dispute and defining the issues to be tried". In cases where the motions judge exercises her power under Rule 20.05(1), however, the Court of Appeal noted that "she should specifically say so, and the order should refer to r.20.05(1)".

The Court then observed that these very same principles apply to rulings of law. That is, generally, where a motions judge makes findings on a question of law in dismissing a motion for summary judgment, those determinations should not be considered binding on subsequent proceedings. They are not final orders. However, if the motions judge invokes Rule 20.04(4) in her ruling, then her legal determinations may very well be binding. Rule 20.04(4) provides that where the court is satisfied that the only genuine issue for trial is a question of law, the court "may determine the question and grant judgment accordingly".

The Court summarized the approach to binding rulings of law in the dismissal of a summary judgment motion as follows:

In an attempt to provide greater clarity, I would summarize the effect of this court's 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 judge's 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[s] 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.

The Court therefore concluded that in the absence of an express statement that the motion judge intends her legal finding to be binding on the parties at trial, the Court will presume that no such binding conclusion has been made and the motion judge was "simply explaining why she concluded that there is a genuine issue requiring a trial".

In this case, the Court held that it was not at all clear that the motions judge intended her ruling on the "uninsured" provision to be binding at trial. The issue was not res judicata at trial and therefore the motion judge's order was not final in nature.

The Court observed that the motion judge did not invoke Rule 20.04(4). Moreover, the judge's analysis of the policy and legal question at issue was not intended to be final and binding on the parties:

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 whether or not [the plaintiff] is entitled to coverage.


The Court of Appeal's decision in Skunk establishes that any conclusions of law reached in the dismissal of a summary judgment motion are not presumptively binding at trial. The motions judge must expressly state that she intends her ruling to be binding in a subsequent proceeding, preferably by invoking Rule 20.04(4).

These principles act as a stark warning to counsel who argue summary judgment motions: if you seek to have the motions judge make a final and binding conclusion of law or fact, you must ensure this is made clear. Otherwise, you may face an argument that the motion judge's conclusions were confined to the motion and have no further implications for the parties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions