Court of Appeal for Ontario

Date: 2018-05-10 Docket: C61499

Judges: Pepall, Lauwers and Paciocco JJ.A.

Parties

Between

James Cowan and Shauna Cowan Plaintiffs (Respondents)

and

General Filters Inc., Canadian General Filters Limited, Lippert & Wright Fuels Ltd. also known as Dave Lippert Fuels Ltd., K & S Climate Control, Oil Tech Plus Ltd., John Doe, John Doe Company and The Dominion of Canada General Insurance Company Defendants (Appellant, Respondents)

and

Dana Canada Inc. Filter Division Third Party (Respondent)

Counsel

Christopher I.R. Morrison, for the appellant

Christopher A. Chekan, for the respondent Dana Canada Inc. Filter Division

No one appearing for the respondents James Cowan, Shauna Cowan, General Filters Inc., Canadian General Filters Limited, Lippert & Wright Fuels Ltd. also known as Dave Lippert Fuels Ltd., K & S Climate Control, and Oil Tech Plus Ltd.

Procedural History

Heard and released orally: May 4, 2018

On appeal from: the order of Justice James W. Sloan of the Superior Court of Justice, dated December 11, 2015, with reasons reported at 2015 ONSC 7773.

Reasons for Decision

[1] The respondent takes the position that this court does not have jurisdiction to hear this appeal because the order is interlocutory and the appeal lies to the Divisional Court with leave.

[2] The appellant submits that this court has jurisdiction on the basis that the parties had reached a settlement agreement that the motion judge had no authority to decline to enforce. It argues that it is a final decision that could not be raised again at trial. It relies on Fusarelli v. Dube, [2005] O.J. No. 4398 (C.A.), and Chertow v. Chertow (2001), 146 O.A.C. 141.

[3] In our view, these cases are distinguishable. They both dealt with the existence of a r. 49 offer, pursuant to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that created a new lis, which is not the case here. The issue before the motion judge was whether certain of the parties could remove a defendant on consent when the third party opposed such a motion.

[4] The order does not finally dispose of the action nor does it finally determine any claim or defence raised in the litigation or finally determine any substantive right of the parties. Rather, the order leaves these to be resolved by subsequent adjudication. As such, the order is an interlocutory order, and this court does not have jurisdiction.

[5] The appeal is quashed for lack of jurisdiction. The appellant is to pay the respondent $8,000 in costs on a partial indemnity scale inclusive of disbursements and applicable taxes.

"S.E. Pepall J.A."

"P. Lauwers J.A."

"David M. Paciocco J.A."