Court of Appeal for Ontario

Date: 2017-05-31 Docket: C62910

Judges: Cronk, Blair and van Rensburg JJ.A.

Between

Stephen Durbin Applicant (Respondent)

and

George F. Brant Respondent (Appellant)

Application

Application under section 9 and section 11 of the Solicitors Act, R.S.O. 1990, c. S.15, and rule 14.05(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Counsel:

• George Brant, in person
• Shoshana Bentley-Jacobs, for the respondent

Heard and released orally: May 31, 2017

On appeal from the order of Justice John R. Sproat of the Superior Court of Justice, dated September 30, 2016.

Reasons for Decision

[1] The appellant seeks to appeal from the application judge's order referring his account dated February 28, 2016 for assessment under the Solicitors Act, R.S.O. 1990, c. S.15.

[2] At the outset of oral argument, we invited the parties' submissions on whether this court has jurisdiction to hear the proposed appeal. Having received and considered those submissions, we are of the view that the order in question (mistakenly called a "judgment" in the materials below) is interlocutory rather than final in nature. Consequently, any appeal therefrom lies to the Divisional Court, with leave, under s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[3] We reach this conclusion because the order at issue does not determine the real matter in dispute between the parties. Rather, the order that the contested account be referred for assessment concerns a preliminary procedural matter. The assessment process has yet to run its course.

[4] We appreciate that the appellant, supported by the respondent, relies on this court's decisions in Ball v. Donais (1993), 13 O.R. (3d) 322 and Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97 and related cases to argue that the order is final in nature because, he says, he is now precluded by reason of the order from arguing, on any basis, that the account at issue is not subject to referral for assessment under ss. 9 and 11 of the Solicitors Act. The order therefore, he submits, is final in nature and not interlocutory.

[5] We disagree.

[6] The appellant has not been deprived of a substantive right because he is not precluded from defending the quantum of his account. That is the real matter at issue between the parties and it has yet to be determined.

[7] In our view, therefore, the order is interlocutory and this court lacks jurisdiction to entertain the proposed appeal.

[8] Accordingly, the appeal is quashed. As both parties sought to have the appeal proceed in this court, this is not an appropriate case for costs thrown away of today's attendance.

"E.A. Cronk J.A."

"R.A. Blair J.A."

"K. van Rensburg J.A."