COURT OF APPEAL FOR ONTARIO

DATE: 20030225

DOCKET: M29121/C38331

RE: ANTIQUE TREASURES OF THE WORLD INC. (Plaintiff (Respondent)) - and - MICHELLE BAUER and OAKVILLE ANTIQUE MALL INC. (Defendants (Appellants))

MICHELLE BAUER (Plaintiff by Counterclaim (Appellant)) - and - ANTIQUE TREASURES OF THE WORLD INC. and LUCIE BRINGS (Defendants by Counterclaim (Respondents))

BEFORE: FELDMAN, CRONK and ARMSTRONG JJ.A.

COUNSEL: Timothy Leigh-Bell, for the appellant (Laszlo Pandy in attendance but not on the record) Brendan J. Moher, for the respondent Robert Munroe, for the Intervenor, A. Sheremeta

HEARD: FEBRUARY 6, 2003

RELEASED ORALLY: FEBRUARY 6, 2003

A motion to adjourn the appeal from the order of Dunn J. dated May 16, 2002.

ENDORSEMENT

[1] The appellant, Michelle Bauer, moves for an adjournment of the hearing of the appeal, essentially on the basis that she has recently retained new counsel, Mr. Leigh-Bell, after her last counsel (third counsel on this case) was removed from the record last November by a judge of the Superior Court.

[2] The appeal is from the order of Dunn J. dated May 16, 2002, which was made on the motion to set aside the April 3, 2002 order of Clark J. which struck out the Statement of Defence and Counterclaim of the appellants. Dunn J. refused to set aside the order of Clark J. He said that the appellants’ remedy was an appeal to this court because Clark J.’s order was a final order. Dunn J. also purported to extend the time for appealing Clark J.’s order to this court.

[3] The appellants did not appeal the order of Clark J., but rather appealed the order of Dunn J. to this court. However, no appeal lies to this court from the order of Dunn J. because his order is not a final order but is rather an interlocutory order.

[4] The motion to set aside before Dunn J. was brought under Rule 59.06 on the basis that the appellants’ second solicitor did not have authority to act for them before Clark J. (or on a previous motion before Walters J.). The disposition of that issue does not finally decide the main issue in the action. That was decided when the Statement of Defence was struck out. The order of Dunn J. is therefore interlocutory, and any appeal from that order lies to the Divisional Court with leave of a judge of the Superior Court: s.19(1)(b), Courts of Justice Act. The case of Halow Estate v. Halow, Sr. (2002), 59 O.R. (3d) 211 (C.A.), relied upon by the appellant, Michelle Bauer, deals with an appeal from noting in default after striking out a defence. It is not of assistance, as it does not address the proper route to appeal from an order dismissing a motion to set aside the noting in default.

[5] There is, therefore, no purpose to adjourning this appeal as this court has no jurisdiction to hear it. The request for adjournment is therefore denied, and the appeal is quashed.

[6] Costs are awarded to the respondents on a partial indemnity basis fixed in the amount of $12,000, inclusive of the costs of the appeal and the attendances before O’Connor A.C.J.O., in accordance with his orders.

[7] Counsel for the respondents asked the court to deal with a further appeal brought by the appellants from the order of Mackenzie J. of January 30, 2003, which refused to set aside the default judgment and the orders which preceded it. Although we are not able to deal with an appeal which is not before us, we agree that that appeal, or a motion to quash it if it is not properly brought before this court, should be dealt with on an expedited basis, and the respondents may wish to move for an order for that purpose.

Signed: _____ “K. Feldman J.A.” _____ “E.A. Cronk J.A.” _____ “Robert P. Armstrong J.A.”