DATE: 20050317

DOCKET: M32064 (C42136)

COURT OF APPEAL FOR ONTARIO

RE:

TRAFFIC TECH INC. (Plaintiff (Respondent)) – and – TRANS-SEND FREIGHT SYSTEMS LTD. (Defendant (Appellant))

BEFORE:

MacPHERSON and CRONK JJ.A. and WHALEN J. (ad hoc)

COUNSEL:

John McNeil

for the appellant

Jennifer J. Earle

for the respondent

HEARD & RELEASED ORALLY:

March 14, 2005

On appeal from the Order of Justice L. Brennan of the Superior Court of Justice dated July 16, 2004.

E N D O R S E M E N T

[1] The appellant moved for an order dismissing or perpetually staying the respondent’s action on the basis, essentially, that the respondent is not entitled to bring the action in Ontario because of claims made in an action between the parties pending in the State of Georgia. By order dated July 16, 2004, Brennan J. of the Superior Court of Justice dismissed the appellant’s motion. The appellant seeks to appeal that dismissal to this court. The respondent moves for an order quashing the appellant’s appeal, on the basis that the challenged order is interlocutory, rather than final, in nature.

[2] The reasons of the motions judge state that, “The factual background of this matter is not sufficiently known to allow me to determine the just and expeditious resolution of this motion.” This statement indicates the motions judge’s view that the record before him was insufficient to enable him to decide the appellant’s motion on the merits.

[3] In addition, the motions judge’s order dated July 16, 2004, which was settled before him, expressly states that the appellant’s motion was dismissed “without prejudice to the moving party’s right to bring a further motion forward on proper material”.

[4] In our view, the motions judge did not come to any final decision as to whether the respondent’s action should be stayed on jurisdictional or other grounds. Rather, he declined to make that decision without additional facts concerning, in particular, the status of the Georgia action between the parties and the matters at issue in that litigation.

[5] Even if the motions judge’s referral of the Ontario action to a case management master was intended to permit the determination of only those matters relating to the interpretation of the contract at issue, as the appellant contends before us, it cannot be said that the refusal to grant the stay requested by the appellant finally determined the appellant’s right to a stay. In this important respect, this case is similar to Suresh v. R., [1998] O.J. No. 5275 (Ont. C.A.). Thus, the motions judge’s order is interlocutory and not final and any appeal from it lies to the Divisional Court, with leave.

[6] For these reasons, the respondent’s motion is granted and the appellant’s appeal to this court is quashed. The respondent, as the moving party, is entitled to its costs of this motion fixed, on the consent of the parties, in the amount of $1,750.00, inclusive of disbursements and Goods and Services Tax.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“W. L. Whalen J. (ad hoc)”