Almrei v. Canada (Attorney General), 2011 ONCA 779

In Almrei v. Canada, the Court of Appeal of Ontario identified circumstances in which the decision to dismiss a motion brought under Rule 20 for summary judgment will constitute a final order of the court, and, as a result, the motion judge’s decision may be appealed. The Court established that in the case where the resolution of a particular issue in summary judgment gives rise to res judicata, the order to dismiss the motion for summary judgment is final and may be appealed.

The appellant was suing the state for damages alleging, among other things, negligent investigation, false imprisonment, and breaches of ss. 7, 9, and 12 of the Canadian Charter of Rights and Freedoms. These actions arose out of the Attorney General issuing a security certificate in 2008 under the Immigration and Refugee Protection Act and holding the appellant in custody for many years. The trial judge determined that the security certificate was unreasonable and quashed it. The appellant sought partial summary judgment in his action against the Attorney General on the basis of issue estoppel, arguing that the parties were bound by the decision made by the trial judge. The Attorney General moved to quash the appeal on the claims that the order to dismiss the appellant’s motion for summary judgment was not final.

Although an order dismissing a motion for summary judgment brought under Rule 20 is not necessarily a final order in that it determines only that there are genuine issues for trial, if the order is res judicata, then the order may be final. In this case, the appellant singled out for resolution the issue of issue estoppel, which was found by the motion judge to not be available. The issue of issue estoppel is res judicata, and, therefore, the appellant cannot raise it and the order dismissing the motion for summary judgment is a final order of the court. As a result, the appellant may appeal the motion judge’s decision to dismiss his motion for summary judgment.

December 13, 2011
Link to Decision

Pedram Moussavi
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