DATE: 20040526

DOCKET: C40707

COURT OF APPEAL FOR ONTARIO

RE:

VERA R. DICKINSON and 1133720 ONTARIO LIMITED (Plaintiffs (Appellants)) – and – TORONTO AND REGION CONSERVATION AUTHORITY, CRAIG MATHERS, RON DEWELL, RUSSELL WHITE, HAWK SITE INCORPORATED, ROBERT LAWRIE, CHESTNUT PARK REAL ESTATE LIMITED (Defendants (Respondents))

BEFORE:

ABELLA, CRONK and JURIANSZ JJ.A.

COUNSEL:

Vera R. Dickinson in person

Hans Engell for the respondent Chestnut Park Real Estate Limited

Murray Stieber for the respondents Toronto and Region Conservation Authority et al

HEARD AND ENDORSED:

May 25, 2004

On appeal from the order of Justice S. Himel of the Superior Court of Justice dated September 25, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant Vera Dickinson seeks to set aside the September 25, 2003 order of Himel J. and to obtain an Order: (i) dismissing the respondents’ rule 21.01 motions to strike Vera Dickinson’s claim on the basis that it discloses no reasonable cause of action; and (ii) granting leave under rule 15.01 of the Rules of Civil Procedure for Vera Dickinson to represent the appellant corporation in this action.

[2] We conclude that this appeal must be dismissed for the following reasons.

[3] We agree with Vera Dickinson that the motions judge’s order striking her claim is a final order. Vera Dickinson, however, is a shareholder of the appellant corporation that owns the property at issue. The motions judge correctly concluded, therefore, that Vera Dickinson has no legal capacity to sue the respondents in this action. The asserted cause of action is that of the corporation, not that of Vera Dickinson.

[4] The motions judge’s discretionary order under rule 15.01, declining to grant leave to Vera Dickinson to represent the corporate appellant in this action, was interlocutory in nature. Appeals from interlocutory orders lie to the Divisional Court, with leave of that court. Accordingly, we have no jurisdiction to entertain the appeal from the motions judge’s order denying leave under rule 15.01.

[5] We note, concerning these matters, that the appellant corporation’s action remains outstanding. If Vera Dickinson is successful before the Divisional Court (should leave be sought from and granted by that court to appeal to that court), in obtaining an order allowing her to represent the corporate appellant, or should the corporate appellant retain counsel, its action against the respondents can proceed.

[6] This is not an appropriate case for an award of costs.