The Danger of Mid-Motion Appeals

 Athanassiades v. Rogers Communications Canada Inc., 2024 ONCA 497

Appellants often make the mistake of focusing on a judge's factual findings, instead of legal or procedural decisions. That is not a mistake this appellant made.

The plaintiff-appellant claimed against Rogers for:

  • Spoliation;
  • Intentional infliction of mental suffering (IIMS);
  • Breach of contract; and
  • Defamation.

Rogers moved for summary judgement. The motion judge dismissed the claims for spoliation and IIMS, and directed a mini-trial of the contract and defamation claims.

Before the mini-trial was held, the plaintiff appealed to the ONCA.

As previously discussed, final order goes to the Court of Appeal, interlocutory orders go to the Divisional Court. Orders granting summary judgement are final. Orders denying summary judgement, or setting a procedure to be followed, are interlocutory.

As put by the Court:

This appeal raises unusual jurisdictional and procedural concerns. There is no doubt that the aspects of the Order dismissing the claims for spoliation and intentional infliction of mental suffering are final. However, these orders were made in the context of a motion for summary judgment that has not yet been completed. Indeed, the mini-trial dealing with the claims for defamation and breach of contract has not yet taken place. The motion judge’s order that these issues be dealt with by way of a mini-trial is interlocutory. Therefore, the proposed appeal arises from a mix of final and interlocutory orders, in circumstances where the motion for summary judgment, which was meant to deal with all four causes of action, has not been completed.

Did the appellant confine his arguments to the final orders properly under appeal? He did not:

[7] In his notice of appeal and factum, Mr. Athanassiades takes issue with the motion judge’s decision as a whole and asks that the action be remitted back to the Superior Court for a trial, and that he be allowed to amend his statement of claim to add two causes of action. The grounds of appeal do not explicitly differentiate between the various aspects of the Order, but instead allege that the motion judge “misapplied” the test for summary judgment and failed to explain why he preferred Rogers’s evidence over Mr. Athanassiades’s evidence.
[9] The factum takes a similar approach. There are no arguments specifically directed at the motion judge’s dismissal of the claims for spoliation and intentional infliction of mental suffering. Instead, the factum consists of a broad attack on the motion judge’s approach to the motion for summary judgment, with specific emphasis on his decision to direct a mini-trial.

Prior to the hearing, the Court sent a letter to the parties, raising the jurisdictional issue, and telling them to be prepared to address the Court's concerns about hearing the appeal before the summary judgement motion was full decided. After initial submissions on this point, the Court dismissed the appeal:

It is singularly impractical and a waste of judicial resources to hear an appeal from a motion for summary judgment that has not yet been completed. This leads to an unnecessary and wasteful fragmentation of summary judgment proceedings that are designed to resolve disputes in a timely and cost-effective manner. If Mr. Athanassiades loses after the completion of the motion for summary judgment, this would be the sensible point in time to appeal the full outcome of the motion for summary judgment. If Mr. Athanassiades succeeds on the balance of the issues left to be decided on the motion for summary judgment, he can then decide whether to proceed to trial on the remaining issues or whether to appeal with respect to the aspects of his claim that were dismissed before proceeding to trial. This is a far more efficient way of proceeding.

The appellant responded by asking the Court to reopen the case to hear submissions on an alleged "lack of procedural fairness in the manner in which the court disposed of the appeal." The Court's response:

There was no procedural unfairness. The court notified counsel ahead of time regarding the concern over whether the appeal should be heard before the completion of the mini-trial. Counsel were given an opportunity to address this issue at the beginning of the hearing. Most importantly, the dismissal of this appeal does not preclude the appellant from appealing the disposition of the motion for summary judgment, including the dismissal of the claims for intentional infliction of mental distress and spoliation, at a later date once the motion for summary judgment is completed. There has been no prejudice to the appellant. The only issue decided by this court is the proper timing and procedure to be followed for appeal in this case.

While you might expect this all to result in an outsized costs award for the respondent, it didn't:

The respondent is entitled to $10,000 in costs, all inclusive. While this amount is significantly less than the amount sought by the respondent, we note that the basis on which the appeal was dismissed was raised by the court and not the respondent, and that the court has not determined the final merits of the appeal.

Morals abound:

  1. The best time to appeal the result of a proceeding is when that proceeding has ... resulted, and you have results.
  2. If you absolutely must appeal a procedural point before the results are in, you need to be in the right court.
  3. If the Court sends you a letter raising a new argument, that is probably the only argument the court cares about. Either you made a mistake in not raising and addressing it, or the Court is mistaken in thinking it relevant. Which do you think is more likely?
  4. If the Court tells you to be ready to address an argument, and then dismisses your appeal because it didn't like your submissions, writing back to accuse the Court of procedural unfairness, and asking for a second chance, is not a good use of your time.
  5. If you are the respondent, it is your job to make the best arguments against the appeal, and not just rebut the arguments raised by the appellant. Lawyers have been trained by custom and culture not to "take advantage" of an opponent's procedural mistakes. You can't take that approach to jurisdictional issues.

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