Cole v. Hamilton (City)

Cole v. Hamilton (City)

Albert v. Spiegel remains controlling: where a motions judge dismisses a motion for summary judgment (or dismisses a cross-motion) that portion is interlocutory and requires leave to the Divisional Court; the Court of Appeal has no jurisdiction under s.6(2) to hear that portion until leave is granted, therefore the Court of Appeal must not proceed on that portion and the motion for directions is denied.

Citation
C38104, M28619
Parties
Appellant/plaintiff: MARK COLE; Appellant/plaintiff: ALBERTON PROPERTIES INC.; Respondent/defendant: THE CORPORATION OF THE CITY OF HAMILTON; Respondent/defendant: MARY KISS; Respondent/defendant: MARVIN CAPLAN; Respondent/defendant: ROBERT MORROW; Respondent/defendant: GERALDINE COPPS; Respondent/defendant: LEN KING; Respondent/defendant: PETER LAMPMAN
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
3 July 2002
Procedural Posture
Civil / Appeal From Motions Judge Order; Motion for Directions on Appeal Jurisdiction
Outcome
Motion for directions denied; Court of Appeal will not hear that portion of the appeal dismissing the Responding Parties' cross-motion until final disposition of their motion for leave to appeal to the Divisional Court or further order.
Legal Topics
Summary Judgment, Final Vs Interlocutory Order, Leave to Appeal, Appeal Route Jurisdiction, Courts of Justice Act S.6(2)
Source Language
English
Civil Procedure Appeal Administrative Summary Judgment Final Vs Interlocutory Order Leave to Appeal Appeal Route Jurisdiction Courts of Justice Act S.6(2)

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Parties

MARK COLE

Appellant/plaintiff

ALBERTON PROPERTIES INC.

Appellant/plaintiff

THE CORPORATION OF THE CITY OF HAMILTON

Respondent/defendant

MARY KISS

Respondent/defendant

MARVIN CAPLAN

Respondent/defendant

ROBERT MORROW

Respondent/defendant

GERALDINE COPPS

Respondent/defendant

LEN KING

Respondent/defendant

PETER LAMPMAN

Respondent/defendant

Procedural Posture

Civil / Appeal From Motions Judge Order; Motion for Directions on Appeal Jurisdiction

Legal Issues

  1. 1 Whether the Court of Appeal has jurisdiction to hear and dispose of all matters determined by a motions judge when motions and cross-motions for summary judgment were heard together
  2. 2 Whether dismissal of a cross-motion for partial summary judgment is interlocutory requiring leave to the Divisional Court
  3. 3 Whether appeals from different portions of a single motions judge order may proceed by separate routes or must be consolidated

Ratio Decidendi

Albert v. Spiegel remains controlling: where a motions judge dismisses a motion for summary judgment (or dismisses a cross-motion) that portion is interlocutory and requires leave to the Divisional Court; the Court of Appeal has no jurisdiction under s.6(2) to hear that portion until leave is granted, therefore the Court of Appeal must not proceed on that portion and the motion for directions is denied.

Court Disposition

Motion for directions denied; Court of Appeal will not hear that portion of the appeal dismissing the Responding Parties' cross-motion until final disposition of their motion for leave to appeal to the Divisional Court or further order.

Orders

  • Directions sought by Moving Parties denied
  • The Responding Parties' appeal to the Court of Appeal shall not be heard until final disposition of the Responding Parties' motion for leave to appeal to the Divisional Court or further order of this court