DATE: 20060206

DOCKET: C43242

COURT OF APPEAL FOR ONTARIO

RE:

SUSAN J. MODEL & TALENT MANAGEMENT INC. (Applicant (Respondent on appeal)) – and – IMG MODELS, INC. (Respondent (Appellant))

BEFORE:

GOUDGE, LANG AND MACFARLAND JJ.A.

COUNSEL:

Arthur Hamilton

for the appellant

Sandra Barton and Peng Fu

for the respondent

HEARD & RELEASED ORALLY:

January 30, 2006

On appeal from the order of Justice Nancy Backhouse of the Superior Court of Justice dated December 23, 2004.

E N D O R S E M E N T

[1] When the appeal opened, the court raised the issue of whether the order appealed from is interlocutory and therefore this court is without jurisdiction. The appellant makes three arguments in response.

[2] First, it says the order is made against the non party and is therefore final. We do not read the order that way. On its face it is an order only against IMG. If the respondent seeks to compel the non-party Ms. Werbowy to re-attend, or to respond to denials as if she were a party, that issue will require a fresh motion. Only IMG is compellable as a party under this order.

[3] Second, the appellant says that the order below ends the summary procedure to which it is entitled and this makes the order final. Again we disagree. The order simply converts the application into a trial. The matter was started in the Superior Court of Justice and will remain there. Cases like Buck Brothers involving the right to have a dispute determined at private arbitration rather than in the courts have no application. The appellant here has no right by contract or otherwise to a determination by the court of the underlying issue by application rather than by trial. We should also make clear that the finding of ambiguity was for the purposes of the motion only, and does not foreclose the issue before the trial judge.

[4] Finally, in its factum the appellant also raises the fact that the respondent had not made the required election regarding a simplified rules trial when the order appealed from was made. As that has now been done, this issue is moot.

[5] In the result the order appealed from is interlocutory and the appeal must be quashed.

[6] Costs to the respondent fixed at $4,000.00 all inclusive.

“S. T. Goudge J.A.”

“S. E. Lang J.A.”

“J. MacFarland J.A.”