DATE: 20041007

DOCKET: C41574

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – 1148044 ONTARIO LTD. c.o.b. as CAMBIA DESIGN BUILD and COLIN GRAHAM (Appellants) – and – TREK MECHANICAL LTD. and WAYNE D. SPEED (Respondents)

BEFORE:

WEILER, GOUDGE and BLAIR JJ.A.

COUNSEL:

Norman A. Keith and Cristie Sutherland

for the appellants

Victoria A. Kondo and Giuseppe Ferraro

for the respondent Her Majesty the Queen

Elliot Berlin

for the respondents Trek Mechanical and Wayne D. Speed

HEARD & ENDORSED:

October 5, 2004

On appeal from the judgment of Justice Sarah Pepall of the Superior Court of Justice dated March 8, 2004, and from the order of Justice of the Peace Waugh dated September 5, 2003.

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

[1] The order of Justice of the Peace Waugh was an interlocutory order dealing with the question of severance. Assuming, without deciding, that a judge who was not the trial judge had jurisdiction to entertain this application, certiorari should not be used as a substitute for the lack of a statutory appeal from an interlocutory order. Therefore, Pepall J. was correct to refuse to decide the certiorari application.

[2] To the extent the appellant alleges an anticipatory Charter breach, we are of the opinion that in the circumstances of this case the application is premature. The trial judge is in the best position to decide whether it is in the interests of justice to grant severance.

[3] Accordingly, the appeal is dismissed.

[4] In the circumstances we do not think this is a case for costs.