Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211027 DOCKET: M52719 (M52669)

Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J. (ad hoc)

BETWEEN

Emad Elguindy and Irene Elguindy Plaintiffs

and

Aziz Elguindy and Afrodite Elguindy Defendants (Moving Party / Responding Party)

Counsel: Aziz Elguindy, acting in person Mitch Bates, for the responding party

Heard: October 22, 2021 by video conference

Reasons for Decision

[1] The moving party, Aziz Elguindy, asks that we reverse the order of van Rensburg J.A., dated August 6, 2021. Her order refused to extend the time for the moving party to appeal the dismissal of a motion he brought in the Superior Court under r. 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In his r. 59.06 motion, the moving party sought to set aside a costs order made at trial in favour of the responding party, Afrodite Elguindy.

[2] At the conclusion of oral argument, we dismissed the motion with reasons to follow. These are those reasons.

[3] The moving party did not defend the proceeding below, and was noted in default. After the trial judge made his disposition of the action, including making an order for costs, the moving party sought leave to appeal the costs order to this court. Leave was denied: Elguindy v. Elguindy, 2020 ONCA 739.

[4] The moving party then sought to challenge the same costs order by applying to the trial judge under r. 59.06, alleging that he had not been given notice of the process that led to the costs order, or that the costs order had been obtained by fraud. On May 13, 2021, the trial judge dismissed that motion on the basis that, having been noted in default, the moving party was not entitled to notice, and his allegations of fraud were “unfounded, unproven and irresponsible.”

[5] The moving party’s request for an extension of time to appeal the dismissal of his r. 59.06 motion was refused by van Rensburg J.A. on the basis that no appeal lies to this court from it. She concluded that the order dismissing the r. 59.06 motion was an interlocutory order, not a final order, and could therefore only be appealed, with leave, to the Divisional Court.

[6] We see no error in this conclusion in the circumstances of this case. A final order is one that determines the real matter in dispute between the parties — the very subject matter of the litigation — or a substantive right to relief of a plaintiff or substantive right of a defendant. The rights of the moving party were adjudicated by the trial judge, including in the costs order, consequent upon the moving party having been noted in default. The moving party sought and was denied leave to appeal the costs order that he is concerned about. The dismissal of his r. 59.06 motion in these circumstances cannot be said to have been a final order. It was not the determination of the very subject matter of the litigation or of any substantive right to relief or defence in the action, all of which had already been determined. The dismissal of the r. 59.06 motion was an interlocutory order: Antique Treasures of the World Inc. v. Bauer, at para. 4.

[7] The moving party cites the decision in Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670, 391 D.L.R. (4th) 374. There is no discussion in that case of appeal routes and it cannot be taken to provide that the dismissal of the motion under r. 59.06 resulted in a final order in this case.

[8] The motion is dismissed, with costs payable to the responding party in the sum of $750, inclusive of disbursements and applicable taxes.

“G.R. Strathy C.J.O.”

“B. Zarnett J.A.”

“Wilton-Siegel J.”