COURT FILE NO.: 122/01

DATE: 20020919

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, THOMAS and MACLEOD JJ.

B E T W E E N:

1206468 ONTARIO LTD. (c.o.b. as Quadracon Electrical Contractors and Construction Management), 1354384 ONTARIO LTD., LEONARD FELDT, ALEX BURDAN and EDWARD IZIKSON

Appellants in Appeal

• and -

MICHAEL GOFT, DYSON ELECTRIC & COMMUNICATIONS LTD. and 966642 ONTARIO LIMITED

Respondents in Appeal

Fred A. Platt, for the appellants on appeal

Allan Sternberg, for the respondents on appeal

Raymond S. Slattery, for the receiver/manager, Richter & Partners Inc.

HEARD: September 19, 2002

THEN J.: (Orally)

1The respondent raises a preliminary issue as to the jurisdiction of the Court to proceed with this appeal.

2The respondent submits the Order of Madam Justice Swinton dated February 2, 2001 is an interlocutory order so that leave of the Court is required before the appeal can proceed. The validity of paragraph 20 of that order is the only issue on appeal.

3In Watkin (1996) 1996 11788 (ON SC), 28 O.R. (3d) 441, Mr. Justice Rosenberg has recognized the principle that while s.255 of the O.B.C.A. purports to grant a right of appeal from any order made under the O.B.C.A. That right of appeal does not pertain to interlocutory orders in view of the provisions of s.19(1)(b) of the Courts of Justice Act. Accordingly, if the order at issue is interlocutory, leave is required before this appeal can proceed.

4In McCart v. McCart, 1946 94 (ON CA), [1946] O.R. 729, the Ontario Court of Appeal stated the following at pp. 731-32:

"An interlocutory order means, not an order made between the issue of the writ and the final judgment, but an order other than a final judgment or order, and, where a final judgment has been pronounced in an action, an order afterwards obtained for the purposes of working out the rights given by the final judgment is deemed to be interlocutory: Blakey v. Latham (1889), 43 Ch. D. 23; Leonard et al. v. Burrows (1904), 7 O.L.R. 316."

5Mr. Platt submits that unlike the situation in McCart, the appointment of a receiver and the conditions of his appointment in this case are the remedy and part and parcel of the judgment, rather than a device to implement the remedy.

6We are all of the view that paragraph 20 of the Order was a condition designed to implement the judgment. Paragraph 19 of the Order makes it clear that directions could be sought and that variance of the conditions of the order was anticipated and indeed Madam Justice Swinton did precisely that on May 7th, 2001 with respect to a number of other conditions in the order.

7The order of February 2nd serves as a bridge between the judgment of January 16th which is aptly described as phase one of the litigation involving the trial of an issue and phase two of the litigation which contemplated further supervision by Madam Justice Swinton upon the report of the receiver.

8We are of the view that the order of Madam Justice Swinton is interlocutory and accordingly this Court does not have the jurisdiction to proceed. The appeal is accordingly quashed without prejudice to Mr. Platt to seek leave to appeal to this court.

9The appeal book reads as follows: "The appeal is quashed for oral reasons by the Court without prejudice for the appellants (respondents on the motion) to apply for leave to appeal to this Court. Costs to the respondent receiver fixed in the amount of $2500 and to the other respondents in the amount of $1000 payable forthwith (within 30 days).

THEN J.

THOMAS J.

MACLEOD J.

Date of Reasons for Judgment: September 19, 2002

Date of Release: September 20, 2002

COURT FILE NO.: 122/01

DATE: 20020919

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, THOMAS and MACLEOD JJ.

B E T W E E N:

1206468 ONTARIO LTD. (c.o.b. as Quadracon Electrical Contractors and Construction Management), 1354384 ONTARIO LTD., LEONARD FELDT, ALEX BURDAN and EDWARD IZIKSON

Appellants in Appeal

• and -

MICHAEL GOFT, DYSON ELECTRIC & COMMUNICATIONS LTD. and 966642 ONTARIO LIMITED

Respondents in Appeal