Court of Appeal for Ontario

CITATION: Josephson v. Hanna, 2007 ONCA 370

DATE: 20070516

DOCKET: M34813, C46439

SIMMONS, CRONK and BLAIR JJ.A.

BETWEEN:

JOSHUA JOSEPHSON

(Applicant (Husband)) (Respondent in Appeal)

and

MICHELLE HANNA

(Respondent (Wife)) (Appellant in Appeal)

Counsel:

Francine Sherkia and Charles Wagman for the appellant

Harold Niman for the respondent

Heard and Endorsed: May 15, 2007

On appeal from the Order of Justice Nancy L. Backhouse of the Superior Court of Justice dated December 13, 2006.

APPEAL BOOK ENDORSEMENT

[1] In our view, the decision of Backhouse J. did not settle any substantive right between the parties. As the respondent husband concedes before this court, the issues of the validity and enforceability of the letter agreement between the parties and of the challenged promissory note remain open for determination at trial notwithstanding the interim payment of $350,000 to the respondent husband directed by the motion judge. More particularly, if the appellant wife is successful at trial, the order of the motion judge would not operate to preclude a claim by her for repayment of the $350,000.

[2] In these circumstances, the order in question is interlocutory in nature. Therefore, we lack jurisdiction to entertain this appeal.

[3] In our view, this is not a case where we should invoke the extraordinary procedure of seeking a designation to sit as judges of the Divisional Court. We note that the appellant wife was informed at an early stage of the jurisdictional issue raised on this motion to quash.

[4] Accordingly, the appeal is quashed for want of jurisdiction.

[5] The respondent husband is entitled to his costs of this motion on the partial indemnity scale, fixed in the amount of $2,500, inclusive of disbursements and applicable G.S.T.