CITATION: Clark v. Clark Estate, 2008 ONCA 516
DATE: 20080625
DOCKET: C47758
COURT OF APPEAL FOR ONTARIO
DOHERTY, ARMSTRONG and MACFARLAND JJ.A.
BETWEEN:
CLARA ELIZABETH CLARK by her Litigation Guardian, CATHERINE ANNE SPENCER
Applicant (Appellant)
and
CARL PEARSON, ESTATE TRUSTEE OF THE ESTATE OF DOUGLAS EMORY CLARK
Respondent (Respondent in Appeal)
John Sanders for the appellant
Stephen H. Gibson for the respondent
Heard: June 25, 2008
On appeal from the order of Justice R.J. Haines of the Superior Court of Justice dated August 24, 2007.
APPEAL BOOK ENDORSEMENT
[1] This court has jurisdiction only with respect to final orders. This is not a technicality but a clear statutory prerequisite. The order in issue does not finally determine any substantive issue against the appellant. The order decides only that the procedure chosen by the appellant (application) was not the appropriate procedure. The appellant is free to proceed with the claim by way of an action and in fact has done so. The fact that the appellant may be faced with a limitation defence in the action cannot alter the nature of the order under appeal. It is, in our view, procedural and interlocutory.
[2] The appeal is dismissed without prejudice to the appellant pursuing his appellate remedies in the Divisional Court. There is no order as to costs.