Sinardi Hair Design v. Knifton, 2003 CanLII 10463 (ON SCDC)

COURT FILE NO.: Divisional Court 231/03

Small Claims Court T53057/01

DATE: 20030501

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Sinardi Hair Design, Plaintiff;

and

Joylene Knifton and Andrew Chomyn, Defendants, Appellants;

and

Greenwin Property Management Inc., Third Party, Respondent;

HEARD: April 28, 2003

BEFORE: Lane, J.

COUNSEL: Jared Brown , for the Appellants;

David Strashin, for the Third Party;

No one appeared for the Plaintiff.

E N D O R S E M E N T

1The appellants have appealed to this court from the order of Deputy Judge Libman of the Toronto Small Claims Court dated January 23, 2003 and have moved to extend the time for filing their appeal. These reasons were originally given orally in court, but there was a malfunction of the recording machinery and what follows is not the same text as the oral, but the reasoning and the result do not differ.

2By an order of Judge Bromstein of October 31, 2002, made as a result of the failure of the Third Party to attend the pre-trial, Greenwin was ordered to pay costs to the other parties on or before December 15, 2002 or have its pleadings struck out. It did not pay the costs. Instead, it moved to set aside the order, but did not appear on the return date. After its pleadings had been struck, Greenwin brought a further motion for relief against the October 31 order. This motion came before Deputy Judge Libman on January 23, 2003. The Deputy Judge ordered that Greenwin’s pleadings be reinstated and that the cost order of Judge Bromstein be set aside.

3The appellants determined to appeal, prepared the papers and turned them over to a process server. The Notice of Appeal was served on the Third Party on February 20, 2003 and on the Plaintiff on the 26^th. The Registrar of this court refused to file the documents because the time for filing had expired. This motion was then brought to extend the time for filing.

4The order of the Deputy Judge is clearly an interlocutory order. Section 31 of the Courts of Justice Act provides for an appeal to this court from a “final order of the Small Claims Court”. There is no provision for an appeal from an interlocutory order of the Small Claims Court. As was pointed out by Krever J. in Gelber v. Allstate Insurance Co. of Canada (1983) 41 O.R. (2^nd) 418, (H.C.J.), “… no appeal lies from a decision unless a right of appeal is granted by statute.” There is no common law right of appeal.

5Accordingly, as this court has no jurisdiction to hear the contemplated appeal, it would be futile to extend the time for filing it. The motion is dismissed with costs to the respondent fixed at $375.

Lane, J.