Court File and Parties

CITATION: Petgrave v. Maheru, 2010 ONSC 1710

DIVISIONAL COURT FILE NO.: 578/08

DATE: 20100319

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, FERRIER AND DAMBROT JJ.

BETWEEN:

ALOMAR PETGRAVE, minor by his Litigation Guardian, Ann-Marie Petgrave, ANN-MARIE PETGRAVE personally, GREGORY CURTIS, VIVIAN PETGRAVE and ALONZO CURTIS PETGRAVE, minor by his Litigation Guardian, Ann-Marie Petgrave

Plaintiffs

(Respondents on Appeal)

– and –

SUKHWINDER K. MAHERU and THE PERSONAL INSURANCE COMPANY OF CANADA and WAWANESA MUTUAL INSURANCE COMPANY OF CANADA

Defendants

(Sukhwinder K. Maheru – Appellant on Appeal)

(Wawanesa Mutual Insurance Company – Respondent on Appeal)

Jonathan Burton, for the Respondents/ Plaintiffs

Sidney Klotz, for the Appellant/Defendant, Sukhwinder K. Maheru

Jay Skukowski, for Wawanesa Mutural Insurance Company of Canada

HEARD at Toronto: March 19, 2010

Reasons for Judgment

BY THE COURT (orally)

[1] The defendant, Ms. Maheru appeals from the order of O’Marra J. dated October 24, 2008, dismissing her motion to amend the judgment of Wilkins J. dated February 12, 2008 in which Wilkins J. approved an infant settlement in this action.

[2] The motion to O’Marra J. was brought under Rule 59.06 which the motions Judge found did not give him jurisdiction to interpret the judgment of another Judge.

[3] The appellant also seeks leave to appeal from the judgment of Wilkins J. Notice of Appeal should have been filed by March 12, 2008, over two years ago. No motion extending time to appeal has been brought.

[4] The jurisdiction of this Court to hear appeals from a Judge of the Superior Court is set out in s.19 of the Courts of Justice Act. Appeals from final orders may be heard by this Court requiring payment of not more than $50,000.00. O’Marra J.’s order is final but requires no payment. No appeal from it lies to this Court.

[5] If we are wrong and the order is interlocutory, s.19(1)(b) of the Courts of Justice Act requires that leave be given to appeal pursuant to the Rules of Court (see Rule 62.02). No leave has been sought or granted.

[6] In order to save both parties additional expense and inconvenience in this matter, we determined that we would hear a motion for leave to extend the time for bringing the appeal from the order of Wilkins J. as if such a motion had been launched. Following consideration of counsel’s submissions, we raised with counsel this Court’s jurisdiction to hear an appeal should leave to extend the time to appeal be granted.

[7] The judgment of Wilkins J. did not require payment of any amount by the appellant. Respondents’ counsel both conceded that the judgment of Wilkins J. did not determine any liability on the part of the appellant. That being the case, as we conclude we have no jurisdiction to hear the appeal on the merits because it does not require a payment of any amount by the appellant, leave to extend time to appeal cannot be granted. Leave is denied.

[8] In the result, the appeal from O’Marra J. is quashed as is the purported appeal from the order of Wilkins J.

COSTS

[9] I have endorsed the Appeal Book, “This appeal is quashed for oral reasons delivered today. Costs fixed at $4,000.00 inclusive, payable by the appellant to the respondent forthwith.”

JENNINGS J.

FERRIER J.

DAMBROT J.

Date of Reasons for Judgment: March 19, 2010

Date of Release: March 25, 2010

CITATION: Petgrave v. Maheru, 2010 ONSC 1710

DIVISIONAL COURT FILE NO.: 578/08

DATE: 20100319

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, FERRIER AND DAMBROT JJ.

BETWEEN:

ALOMAR PETGRAVE, minor by his Litigation Guardian, Ann-Marie Petgrave, ANN-MARIE PETGRAVE personally, GREGORY CURTIS, VIVIAN PETGRAVE and ALONZO CURTIS PETGRAVE, minor by his Litigation Guardian, Ann-Marie Petgrave

Plaintiffs

(Respondents on Appeal)

– and –

SUKHWINDER K. MAHERU and THE PERSONAL INSURANCE COMPANY OF CANADA and WAWANESA MUTUAL INSURANCE COMPANY OF CANADA

Defendants

(Sukhwinder K. Maheru – Appellant on Appeal)

(Wawanesa Mutual Insurance Company – Respondent on Appeal)

REASONS FOR JUDGMENT

BY THE COURT

Date of Reasons for Judgment: March 19, 2010

Date of Release: March 25, 2010