DIV. COURT FILE NO.: 339/04

DATE: 20041101

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

MCGOWAN CONSTRUCTION OF RAVENNA LTD.

Plaintiff

• and -

CEDAR HIGHLAND SKI CLUB et al

Defendants

Sandeep Jindal

for the Plaintiff

Fabio Gazzola

for the Defendants

MOTION HEARD: November 1, 2004

GROUND J.

ORAL REASONS

(Revised February 9, 2005)

1The central issue on this motion is whether the Order of Master Saunders sought to be appealed from is a final or interlocutory order. If interlocutory, the appeal is not properly before this court. Section 17(1)(c) of the Courts of Justice Act provides that an appeal from an interlocutory order of a master is to a single judge of the Superior Court.

2In my view, the law is clear that an order setting aside a default judgment is an interlocutory order. (See Laurentian Plaza Corp. v. Martin (1992), 7 O.R. (3rd) 111.) Counsel for the Defendants appears to take the position that Master Saunders, in setting aside the default judgment on terms which included the payment into court of the amount claimed in the lien action, finally determined a substantive right of the Defendants and accordingly the order is a final order for purposes of the Courts of Justice Act.

3This submission seems to be based on the theory that, by requiring the amount claimed in the lien action be paid into court, Master Saunders effectively determined that the lien was valid and vacated the lien and that accordingly the Defendants are precluded from raising defences as to the validity of the lien claimed. I am unable to accept this proposition. Master Saunders in making the order setting aside the default judgment properly applied the test for setting aside and imposed terms that he determined to be just which included the payment into court. The effect of this may be, for practical purposes, to vacate the lien in that the security of the lien for the amount claimed is replaced by the security of the payment into court. It does not, however, preclude the Defendants from raising, by way of motion pursuant to the Construction Lien Act or the Rules of Practice or in the action itself, any defence it may wish to assert as to the validity of the Plaintiff’s claim, the amount of the claim, the entitlement of the Plaintiff to a lien for such amount or any other defence. No substantive right to the Defendants has been finally determined by the Order of Master Saunders.

4The Order of Master Saunders is, therefore, in my view, an interlocutory order and the appeal is quashed as being improperly brought before this court.

5Costs are awarded to the Plaintiff in the amount of $7,600, inclusive of disbursements and GST, payable within 30 days of today’s date.

Ground J.

Date of Reasons for Judgment: November 1, 2004

Released: February 9, 2005

DIV. COURT FILE NO.: 339/04

DATE: 20041101

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

MCGOWAN CONSTRUCTION OF RAVENNA LTD.

Plaintiff

• and -

CEDAR HIGHLAND SKI CLUB et al

Defendants

ORAL REASONS

(Revised February 9, 2005)

Ground J.