Chertow v. Chertow, 2001 CanLII 4238 (ON CA)

1. DATE: 20010516

DOCKET:C35726

COURT OF APPEAL FOR ONTARIO

RE: PATRICIA CHERTOW (Applicant (Respondent in Appeal)) – and – BRENT CHERTOW (Respondent (Appellant))

BEFORE: FINLAYSON, CARTHY AND CHARRON JJ.A.

COUNSEL: Susan T. McGrath

For the appellant

Peter J. Doucet

For the respondent

HEARD: May 10, 2001

Motion to quash appeal from the order of Justice Robert Riopelle dated January 3, 2001.

E N D O R S E M E N T

2. [1] This appeal is from a refusal by a motions judge to grant judgment pursuant to r.49.09 on an allegedly accepted offer to settle. The respondent moves to quash the appeal as being from an interlocutory order.

3. [2] The main argument was that this motion for judgment on the settlement, when dismissed, can be likened to a dismissed summary judgment motion – the issues in the pleadings go forward for trial in both cases and the order has no impact upon the lis between the parties. This argument overlooks the fact that a new lis was created by the alleged settlement, supervening the issues raised in the pleadings. That lis – was there a settlement? – has been fully and finally disposed of by the motions judge and will not go forward to trial.

4. [3] We are therefore of the view that the order is final and the motion to quash is dismissed. Costs to the appellant.

5. “G.D. Finlayson J.A.”

6. “J.J. Carthy J.A.”

7. “Louise Charron J.A.”