CITATION: Weinrib v. Baker, 2007 ONCA 51

DATE: 20070129

DOCKET: C45337

COURT OF APPEAL FOR ONTARIO

RE:

GILLIAN LESLIE WEINRIB (Applicant/Wife (Appellant in Appeal) v. JEFFREY SAMUEL BAKER and 1223579 Ontario Ltd., operating as “Five61 Dining on Avenue” (Respondents (Respondents in Appeal)

BEFORE:

O’CONNOR A.C.J.O., FELDMAN and ROULEAU JJ.A.

COUNSEL:

Cheryl Goldhart

for the appellant

Michael R. Kestenberg

for the respondent

HEARD: January 25, 2007

RELEASED ORALLY: January 25, 2007

On appeal from the order of Justice Katherine E. Swinton of the Superior Court of Justice dated April 28, 2006.

E N D O R S E M E N T

[1] In our view, the order under appeal is interlocutory in nature and, therefore, this court does not have jurisdiction to hear the appeal.

[2] It is not the case that all orders involving a third party are final. It is the nature of the order and the effect on the third party that must govern.

[3] In this case, the motion judge did not decide finally that the husband did not have an interest in his father’s company. That issue remains open for trial. The motion judge’s order refusing the appellant the opportunity to ask the husband’s father certain questions and refusing to direct him to produce certain documents was made in the course of pretrial proceedings. The father may be called as a witness at trial and may be directed to answer questions and produce documents if the trial judge considers that the information sought is relevant to the issues in the litigation.

[4] In the result, the appeal is quashed. The respondent concedes that he will not argue that the appellant is out of time to institute proceedings in the Divisional Court, if she chooses to do so.

[5] Costs to the respondent are fixed in the amount of $5,000, inclusive of GST and disbursements.

“Dennis O’Connor A.C.J.O.”

“K. Feldman J.A.”

“Paul Rouleau J.A.”