Order dismissing summary judgment motion was not final order

Final or interlocutory

Order dismissing summary judgment motion was not final order

S was driving his wife’s car with others, including K, as passengers. S stopped at store and K took over driving and got into accident, injuring S. S brought claim under “uninsured automobile coverage” provisions in s. 5 of Policy, “inadequately insured motorist” provisions in Endorsement, and s. 265 of Insurance Act. Insurer brought unsuccessful motion for summary judgment to dismiss S’s action. Motion judge determined that it was not clear that vehicle was taken by K without consent, held that s. 265(2) of Act and policy were ambiguous, interpreted policy and Act as meaning that vehicles owned by insured or spouse, if insured, were uninsured automobiles when taken without consent and that, if K took vehicle without consent, K was inadequately insured motorist under policy. Insurer appealed. Appeal dismissed. Motion judge’s order dismissing summary judgment motion was not final order. Motion judges dismissing summary judgment motions were presumed to be simply explaining there was no genuine issue requiring trial and not making determination binding on parties at trial. As it was unclear whether motion judge in this case intended determination to be binding on parties at trial, ambiguity regarding consent meant motion judge’s conclusions were not be taken as anything more than explanation for finding that there was genuine issue for trial. S’s concession that trial judge was free to conclude that wife’s automobile was not “uninsured automobile” because it was owned by S’s spouse was consistent with view that order was interlocutory and not final. Motion judges dismissing summary judgment motions were urged to invoke R. 20.04(4) and make clear in orders and reasons when they intended their determinations of law to be binding on parties at trial.
Skunk v. Ketash (2016), 2016 CarswellOnt 17669, 2016 ONCA 841, Alexandra Hoy A.C.J.O., P. Lauwers J.A., and M.L. Benotto J.A. (Ont. C.A.).