DATE: 20040225

DOCKET: M30983 (C41390)

COURT OF APPEAL FOR ONTARIO

RE: RONALD COOK, MARY ANN COOK, TIFFANY COOK, FOUR DIRECTIONS PETROLEUM (FIRST NATION) INC. and FOUR DIRECTIONS GROUP INC. (Applicants/Plaintiffs) –and– RONALD OVENDEN, PETER COLEMAN, BRADLEY BURDON, JIM BUJOUVES, RAYMOND KARBONI, STEPHEN PEPPER, JEFFREY LIPTON, MILTON CHAMBERS, NEW SOLUTIONS CAPITAL INC., NEW SOLUTIONS FINANCIAL CORPORATION, NEW SOLUTIONS FINANCIAL (II) CORPORATION, NEW SOLUTIONS FINANCIAL (III) CORPORATION, NEW SOLUTIONS FINANCIAL (IV) CORPORATION, NEW SOLUTIONS FINANCIAL (VII) CORPORATION, NEW SOLUTIONS FINANCIAL SR&ED CORPORATION, NEW SOLUTIONS FINANCIAL GROUP, 1302563 ONTARIO LIMITED, ADO HOLDINGS INC., THE PROVIDER GROUP INC., FELDSTEIN & ASSOCIATES LLP, and CHAMBERS & D’ALIMONTE (Respondents/Defendants)

BEFORE: Armstrong J.A. (in chambers)

COUNSEL: Evert Van Woudenberg and James R.G. Cook for the applicants (plaintiffs)

Peter J. Cavanagh and David J.T. Mungovan for respondents (defendants) Ronald Ovenden, Stephen Pepper, Jeffrey Lipton, the New Solutions Group of Companies, and ADO Holdings Inc.

Paul J. Green for the respondent (defendant) Milton Chambers

Douglas D. Langley for the respondent (defendant) Feldstein & Associates LLP

HEARD: February 20, 2004

On appeal from the orders of Justice Ellen M. Macdonald of the Superior Court of Justice dated February 17 and 18 (except for the appointment of a receiver).

E N D O R S E M E N T

[1] The plaintiffs, applicants, obtained an ex parte Anton Pillar order from Justice Peter Jarvis of the Superior Court of Justice on January 21, 2004. The said order permitted the plaintiffs to search the business premises of the various defendants and seize documents and computer records. Seizures were made pursuant to the authority of the Anton Pillar order.

[2] On February 16, 2004, counsel for some of the defendants moved before Justice Ellen Macdonald of the Superior Court of Justice to set aside the Anton Pillar order. On February 17, 2004, Macdonald J. set aside the Anton Pillar order and directed the plaintiffs to return the seized documents to the defendants. On the following day, February 18, 2004, the parties attended again before Macdonald J. to speak to costs and any other matter relating to the endorsement of February 17. On the February 18th attendance, counsel for the plaintiffs requested a stay of Macdonald J.’s order as the plaintiffs intended to appeal. Macdonald J., in refusing to grant the stay, stated:

I am not satisfied there is any foundation for such a stay. There is no evidence that the defendants would destroy such documents. Indeed, they are now under an obligation to deliver affidavits of documents now that a claim has been issued.

[3] On February 20, 2004, counsel for the plaintiffs attended at the Divisional Court Office to file an application for leave to appeal the two orders of Macdonald J. and then to proceed with a motion for an order granting a stay of the orders of Macdonald J. pending the proceedings in the Divisional Court. Counsel was advised by someone in the Divisional Court Office that there was no judge available to hear the motion for a stay on February 20.

[4] Apparently as a result of discussions with counsel for the various defendants, counsel for the plaintiffs was persuaded that the Divisional Court was the wrong court, in any event, and that he should be appealing the orders of Macdonald J. in the Court of Appeal. Counsel then amended his documents by hand to reflect a notice of appeal in the Court of Appeal and the motion for a stay before a single judge of the Court of Appeal. Hence, the motion to stay the orders of Macdonald J. dated February 17 and 18, 2004 came on before me in chambers on the afternoon of February 20.

[5] A threshold question for me is whether the orders of Macdonald J. of February 17 and 18 are final or interlocutory. If they are interlocutory orders, the plaintiffs have filed their notice of appeal in the wrong court and should have proceeded in the Divisional Court.

[6] In one of the early leading cases on the question of whether an order is final or interlocutory, Hendrickson v. Kallio, [1932] O.R. 678, Middleton J.A. said:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject-matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.

[7] In my view, the order of Macdonald J. setting aside the Anton Pillar order does not determine the real matter in dispute between the parties. Whether or not the plaintiffs are entitled to an Anton Pillar order, important as the issue may be, is collateral to the subject-matter of the litigation.

[8] In regard to Macdonald J.’s second order, dismissing the application for a stay of the first order, I am similarly satisfied that such order is interlocutory. There is also an additional issue as to whether, having already sought and been denied a stay by Macdonald J. under rule 63.02(1)(a), the plaintiffs are entitled to move in this court pursuant to rule 63.02(1)(b). However, I find it unnecessary to decide the latter issue.

[9] In the result, the motion for a stay of the orders of Macdonald J. is dismissed.

[10] Since all of the parties in the motion before me took the position that this case should be in the Court of Appeal because the orders of Macdonald J. are final, I see no reason to make any award as to costs, and none is made.

Signed: “Robert P. Armstrong J.A.”