Court of Appeal for Ontario

Date: 2017-03-17 Docket: M47270 (C62875)

Judges: Epstein, Benotto and Trotter JJ.A.

Parties

Between

She He Huang Applicant/Appellant (Responding Party)

and

Jie Wie Pan Respondent

and

Ancieto M. Braga Respondent (Moving Party)

And Between

She He Huang and Jie Wie Pan Applicants

and

Aviva Insurance Company of Canada, Lawrence Harvey Fine Jewell Law (formerly named Jewell, Michael & Obradovich), and Gregory Chang Defendants (Moving Parties)

Counsel

Alan L. Rachlin, for the moving party, Ancieto M. Braga

Antonios T. Antoniou, for the moving party, Lawrence Harvey Fine Jewell Law

Mikhail Mira, for the moving party, Aviva Insurance Company of Canada

Walter Kim, Public Guardian and Trustee appointed as litigation guardian, for the responding party

Hearing

Heard and released orally: March 17, 2017

Motion: On a motion to quash the appeal from the judgment of Justice Todd L. Archibald of the Superior Court of Justice dated October 11, 2016.

Endorsement

[1] The moving parties seek an order quashing this appeal for want of jurisdiction.

[2] These proceedings arise out of a motor vehicle accident involving the appellant, Ms. Huang.

[3] The motion judge heard a motion for an order to have Ms. Huang attend a capacity assessment and that the Public Guardian and Trustee be appointed as her litigation guardian in the event she were found to be incompetent. The assessor found Ms. Huang incapable of representing herself in these proceedings. The motion judge therefore declared Ms. Huang mentally incapable and appointed the Public Guardian and Trustee as her litigation guardian in the actions.

[4] The moving parties take the position that the order appealed from is interlocutory.

[5] We agree. The order under appeal relates to a procedural issue and is not related to the merits of the proceeding. It is interlocutory. Jurisdiction lies with the Divisional Court. See: Must v. Shkuryna, 2015 ONCA 665.

[6] The appeal of Justice Archibald's order in relation to all three actions is quashed without prejudice to Ms. Huang's right to apply to the Divisional Court for leave to appeal.

[7] Ms. Huang is to pay the costs of the moving party, Mr. Braga, in the amount of $1,500, inclusive of disbursements and HST.

[8] The approval of this order as to form and content is dispensed with.

Gloria Epstein J.A.

M.L. Benotto J.A.

G.T. Trotter J.A.