Dobreff v. Davenport et al. [Indexed as: Dobreff v. Davenport]

88 O.R. (3d) 719

Court of Appeal for Ontario,

Winkler C.J.O., Cronk, Epstein JJ.A.

December 27, 2007

Appeal -- Jurisdiction -- Final or interlocutory order -- Order striking statement of claim in its entirety with leave to resubmit amended statement of claim held interlocutory rather than final -- Appeal lying to Divisional Court and not to Court of Appeal.

The defendants moved to quash the plaintiff's appeal from an order striking the statement of claim in its entirety with leave to resubmit an amended statement of claim.

Held, the motion should be granted.

The order in question was interlocutory rather than final. Because leave to amend was granted, the order did not finally determine the substantive rights of the parties. An appeal from the order lay to the Divisional Court, with leave, and not to the Court of Appeal.

MOTION to quash an appeal from the order of Morissette J. of the Superior Court of Justice, dated September 25, 2007.

Cases referred to Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97, [1994] O.J. No. 1592, 117 D.L.R. (4th) 373, 34 C.P.C. (3d) 76 (C.A.) [page720]

Statutes referred to Canadian Charter of Rights and Freedoms Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6 [as am.], 19(1) [as am.]

Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194

Peter Dobreff, in person. M. Paul Morrissey, for respondents.

[1] Endorsement by THE COURT: -- In our view, the respondents' motion to quash this appeal must be granted. The motion judge's order dated September 25, 2007, which struck the appellant's statement of claim in its entirety with leave to the appellant to resubmit an amended statement of claim, is interlocutory rather than final in nature.

[2] Because leave to amend the entire pleading was granted by the motion judge, the order in question did not finally determine the substantive rights of the parties. See Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97, [1994] O.J. No. 1592 (C.A.). To the contrary, the effect of the order was not to end the proceedings between the parties but, rather, to afford the appellant an opportunity to reframe his claims against the respondents in a fresh pleading. Contrary to the appellant's submission and in contrast to the cases relied upon by him before this court, the motion judge did not dismiss any of the causes of action asserted by him in his pleading, including his claims in respect of the Canadian Charter of Rights and Freedoms. Again, we stress that his pleading was struck with leave to amend, subject only to a page limitation and the pleadings requirements of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[3] Accordingly, an appeal from the motion judge's order lies to the Divisional Court, with leave, pursuant to ss. 6(1), 6(2) and 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[4] The appeal, therefore, is quashed for want of jurisdiction. The respondents are entitled to their costs of this motion and the appeal, fixed in the total amount of $1,000, inclusive of disbursements and GST.

Motion granted.