Executive Summary: Key Legal and Evidentiary Issues

• The appeal turned on whether the order refusing summary judgment was interlocutory, since only an interlocutory order required the panel to reconstitute as the Divisional Court.
   
• Jurisdiction over the appeal depended on section 19 of the Courts of Justice Act, given the interlocutory nature of the underlying order.
   
• Rule 20.05 required the motion judge to specify undisputed facts and define the issues for trial once summary judgment was refused, a step he did not take.
   
• Credibility concerns and missing evidence, rather than a lack of legal merit, prevented the motion judge from granting summary judgment.
   
• Appellants sought a trial confined to the existing record without further evidence, a position the court rejected.
   
• Costs of the appeal were fixed despite the mixed outcome, payable in the cause.
   

Facts of the case

SPM Charters Inc. commenced the underlying action as plaintiff and respondent, against Flightpath Charter Airways Inc., Flite Line Services Inc., and Flite Line Maintenance Inc. as defendants. Flite Line Maintenance Inc. and Flite Line Services Kitchener Inc. also advanced claims as plaintiffs by counterclaim against SPM Charters Inc. and as plaintiffs by crossclaim against Flightpath Charter Airways Inc. A footnote in the reasons notes that Flite Line Services Kitchener Inc. had been incorrectly named by SPM Charters Inc. as "Flite Line Services Inc." Justice Michael J. Valente of the Superior Court of Justice heard a summary judgment motion using the enhanced powers available under rule 20 of the Rules of Civil Procedure, sitting for approximately ten days and reviewing an extensive paper record. His order was dated May 27, 2025, with reasons reported at 2025 ONSC 3054 and 2025 ONSC 4013. The matter came before the Court of Appeal for Ontario, comprising Tulloch C.J.O., Lauwers and Miller JJ.A., who heard the appeal on June 10, 2026.

Policy and legislative provisions at issue

The motion judge's use of the enhanced powers under rule 20 of the Rules of Civil Procedure was central to the appeal, as was rule 20.05, which provides that where summary judgment is refused or granted only in part, the court may specify undisputed material facts, define the issues to be tried, and order the action to proceed to trial expeditiously, imposing such directions or terms as are just. The panel also considered section 19 of the Courts of Justice Act, which governs the routing of appeals from interlocutory orders to the Divisional Court, and section 13 of the same Act, under which the panel reconstituted itself as a panel of the Divisional Court with the permission of the Chief Justice of Ontario and the concurrence of the Acting Chief Justice of the Superior Court of Justice.

Reasoning and analysis

The panel found that because the order under appeal did not resolve the case or dispose of any substantive grounds, it remained interlocutory rather than final, meaning the appeal properly lay to the Divisional Court. To avoid wasting judicial and party resources on a separate Divisional Court hearing, the panel reconstituted itself under section 13 of the Courts of Justice Act, relying on Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839. On the substantive issue, the panel noted that the motion judge had not exercised his responsibility under rule 20.05 and had not addressed the summary judgment principles set out by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7. It would have been more consistent with those principles for the motion judge to direct a full trial before himself, but this option was not raised because he had not invited further submissions after concluding he could not resolve the outstanding issues summarily. The panel held that this failure to invite further submissions was an error, though it clarified that any further submissions should have addressed only the next procedural steps, not an attempt to persuade the motion judge to rule summarily after all. The panel rejected the appellants' request for an order confining any future trial to the existing evidentiary record, agreeing with the respondent that the evidentiary gaps identified by the motion judge, including unresolved credibility issues, required additional and viva voce evidence.

Ruling and overall outcome

The Court of Appeal affirmed the motion judge's order refusing summary judgment and remitted the matter for trial before the motion judge or another judge, as the Regional Senior Judge may direct in their discretion, with the trial judge to determine how the trial should be structured in light of the evidence already received, following a case management meeting with the parties. The appellants' request to limit the trial to the existing record without new evidence was not accepted. Given this mixed outcome, no single party was granted full success on the merits; the costs of the appeal were ordered to be in the cause, fixed at $10,000 all-inclusive.