DATE: 2004-01-19

DOCKETS: M30755 and M30710 (C40832)

COURT OF APPEAL FOR ONTARIO

RE: THE UNITED STATES OF AMERICA and UNITED STATES FEDERAL TRADE COMMISSION (Appellants/Moving Party in M30778) –and– GEORGE MICHAEL YEMEC, ANITA FERN RAPP, STEVEN LAWRENCE RAPP, PAUL CHURCHILL TESKEY, JEAN-PAUL C. TESKEY, JULIA F. BUNGARO, WILLIAM DEAN TEMPLE, JR., YVONNE BUCKINGHAM, FLORENCE MARY TESKEY, WORLD MEDIA BROKERS INC., 1165107 ONTARIO INC., FABY GAMES INC., 624654 ONTARIO LIMITED, 637736 ONTARIO LIMITED, 537721 ONTARIO INC., EXPRESS MARKETING SERVICES LTD., 364058 B.C. LTD., 331216 B.C. LTD., INTERMARKETING SERVICES, INC., CASH & PRIZES, INC., CASH & PRIZES INC., TARAS VOLOSHCHUK (a.k.a. TERRY WOLOSCHUK), CANADIAN SUBSCRIPTION SERVICES, 1305061 ONTARIO INC., 377414 ONTARIO INC. O/A WORLD MEDIA BROKERS, DIAL-A-MILLION INC., TELEGROUP INC. O/A MARKET MONITOR, 747321 ONTARIO INC., GRAND PRINT INC., JACKPOTS & PRIZES, NELSON BUNTING, 599026 ONTARIO INC. and EXPRESS PURCHASE SERVICES LTD. (Respondents/Moving Parties in M30755/Moving Parties in M30710)

BEFORE: CATZMAN, LASKIN and BORINS JJ.A.

COUNSEL:

Malcolm N. Ruby and Lisa Tomas for the appellants/moving parties in docket M30778 The United States of America and United States Federal Trade Commission

H. James Marin for the respondents/moving parties in docket M30755 Julia F. Bungaro, Nelson Bunting and Jackpots & Prizes

David E. Wires and Teresa Cheung for the respondents/moving parties in docket M30710 George Michael Yemec, Anita Fern Rapp, World Media Brokers Inc., 624654 Ontario Limited, 637736 Ontario Limited, 537721 Ontario Inc., Express Marketing Services Ltd., 364058 B.C. Ltd., 331216 B.C. Ltd., 377414 Ontario Inc. o/a World Media Brokers, Dial-A-Million Inc., Telegroup Inc. o/a Market Monitor, 747321 Ontario Inc., Grant Print Inc., 599026 Ontario Inc., 1306051 Ontario Inc. and Express Purchase Services Ltd.

HEARD: January 16, 2004

RELEASED ORALLY: January 16, 2004

E N D O R S E M E N T

CATZMAN and LASKIN JJ.A.:

[1] The appeal to this court is from the order of Gans J., not the reasons of Gans J. On its face, the order, which dissolves two earlier orders made by Nordheimer J., is interlocutory. Counsel for the responding parties submits that, on the principle in Ball v. Donais (1993), 1993 8613 (ON CA), 13 OR (3d) 322, Gans J.’s determination in his reasons that the plaintiffs did not have standing is a final determination appealable as of right to this court. We do not agree.

[2] In our assessment, Gans J. did not intend to, and did not, finally dispose of the issue of standing. Had he intended to so, he would have dismissed the action instead of making the order he did. In this connection, we note that the moving parties had made a second motion before Gans J., based on Rule 21, that has not yet been decided by him. We are buttressed in the view that we take by the undertaking, given in this court by counsel for the moving parties on behalf of their clients, that they will not take the position in future proceedings in this action that the order of Gans J. is res judicata or gives rise to an issue estoppel.

[3] We would grant the motions and quash the appeal. With respect to motion M30755, costs are fixed in the sum of $5,000, plus G.S.T. With respect to motion M30710, costs are fixed in the sum of $7,500, plus G.S.T.

Signed: “M.A. Catzman J.A.” “John Laskin J.A.”

BORINS J.A. (dissenting):

[4] It is necessary for the court to look at the order under appeal and the effect of the order in determining whether it is a final or interlocutory order for purposes of appeal. Approached from this perspective, in my view, the order of Gans J. is final.

[5] This order finally resolved a substantive issue between the parties, i.e., the plaintiffs’ entitlement to an interlocutory injunction given by s. 101 of the Courts of Justice Act. The effect of Gans J.’s order is to preclude the plaintiffs from again seeking injunctive relief until the trial of this action. Thus, the order finally disposes of the plaintiffs’ claim for interlocutory injunctive relief and thereby deprives the plaintiffs of a substantive right under s. 101.

[6] The order, therefore, is final and I would dismiss the motions to quash the appeal.

Signed: “S. Borins J.A.”