This decision offers a convenient summary of the criteria a party must meet to bring a successful motion to have an issue heard in advance of the hearing, in the hope of shortening the appeal process.
[15] Based on McIntyre [See my post here] and Sentinel Hill, there are essentially only two requirements:
(1) the questions are raised by the pleadings; and
(2) the questions may dispose of all or part of the proceeding, may substantially shorten the hearing of the appeal, or may result in a substantial savings of costs.
[25] … The existence of factual disputes is no longer an absolute bar to granting an application but will remain relevant to a court considering whether a determination will substantially shorten the hearing or save costs.
[26] Despite the 2004 amendment, as noted in McIntyre, supra, at paragraph [27], a Rule 58 determination should never be a substitute for a hearing and there should never be a dispute as to a material fact underpinning the question of law. …
[27] In Devon Canada Corp. v. R., 2013 TCC 4, Justice Hogan confirmed that the test is not whether there are facts in dispute but whether there are facts that are in dispute that are material to a determination of the proposed question.
[29] … Similarly, in Kwok v. R., 2008 TCC 238, Justice V. Miller found a question that would only shorten the hearing if answered a particular way to fail this [third] requirement.
See Suncor Energy Inc. v. The Queen 2015 TCC 210 (Rossiter CJ)