DATE: 20050620

DOCKET: C42820

COURT OF APPEAL FOR ONTARIO

RE: INVESTORS GROUP TRUST CO. LTD. (Plaintiff/Respondent) v. BARZEL PROPERTIES (OSHAWA) INC. and MORRIS KAISER (Defendants/Appellant)

BEFORE: DOHERTY, MACFARLAND and LAFORME JJ.A.

COUNSEL:

P. Dollak for the appellant

J. David Sloan for the respondent

HEARD: June 15, 2005

RELEASED ORALLY: June 15, 2005

On appeal from the order of Justice Shaughnessy of the Superior Court of Justice dated December 1, 2004.

E N D O R S E M E N T

[1] The order of McLean J. directing the appellant to answer questions on his debtor examination was admittedly an interlocutory order. It is that order which the appellant has challenged through the proceedings before Shaughnessy J. and seeks to challenge on appeal in this court.

[2] The motion before Shaughnessy J., no matter how it may have been styled, in essence alleged that the appellant had been denied procedural fairness in the proceedings leading to the interlocutory order and that McLean J. was biased in those proceedings. While these allegations raise matters concerning the fundamental rights of the appellant, the order made by McLean J. remained interlocutory and, therefore, subject to the appeal route provided by the legislature for interlocutory orders. The appellant has in fact pursued that route and has been denied leave to appeal to the Divisional Court.

[3] We think it would constitute a triumph of form over substance were we to hold that by including a request for an order quashing the order of McLean J. in the notice of motion before Shaughnessy J., the appellant could create a second route of appeal directly to this court when exactly the same issues could be raised, and were raised on the application for leave to appeal to the Divisional Court.

[4] The order giving rise to the proceedings before Shaughnessy J. was interlocutory. In our view, no appeal lies to this court to challenge an order affirming the order of McLean J. The appeal is quashed as being brought without jurisdiction.

[5] Costs to the respondent, moving party on motion, in the amount of $3,000.00, inclusive of disbursements and GST.

“Doherty J.A.”

“MacFarland J.A.”

“H.S. LaForme J.A.”