Court of Appeal for Ontario

CITATION: Willmot v. Benton, 2011 ONCA 104

DATE: 20110204

DOCKET: M39529 (C52943)

BEFORE: Armstrong, Epstein, Karakatsanis JJ.A.

BETWEEN

Julie Willmot

Plaintiff (Appellant)

and

Robert Allen Benton, Lynn Marie McMahon, Danielle Valentik, Re/Max Quinte Limited, Ian W. Brady, Jennie Marlene Crowe, Corporation of the City of Quinte West, Corporation of the Lower Trent Region Conservation Authority, Marlene Crowe and Steven Crowe

Defendants (Respondents)

COUNSEL:

Julie Willmot, in person

Mark R. Frederick, for the Corporation of the Lower Trent Region Conservation Authority

Suzanne Hunt, for the Corporation of the City of Quinte West

Heard and released orally: January 27, 2011

ENDORSEMENT

[1] This is a motion to quash the appeal. The respondents submit that this court lacks jurisdiction to entertain the appeal because the order in question is interlocutory in that it does not finally dispose of the issues between the parties.

[2] The motion judge, on the basis of his conclusion that the interests of the plaintiff, respondent in this motion, would be best served through assistance, made an order that provides that the plaintiff appoint a litigation guardian and then that the plaintiff’s litigation guardian appoint counsel to represent her.

[3] The primary aspect of the order requiring the plaintiff to appoint a litigation guardian and counsel is procedural in nature and does not finally resolve an issue that goes to the merit or substance of this litigation that asserts claims for damages primarily based on misrepresentation and harassment.

[4] There is one specific aspect of the order that was the subject of additional submissions. It reads as follows:

This court further orders that the plaintiffs litigation guardian shall appoint counsel in the action, the application and the small claims action within 30 days of the date of the order failing which the Conservation Authority or any other defendant in the action or respondent to the application may move without further notice pursuant to rule 21.01 of the Rules of Civil Procedure to strike out the plaintiffs pleadings and seek dismissal on the grounds that the plaintiff`s pleadings disclose no reasonable cause of action and are frivolous, vexatious and an abuse of the court’s process.

[5] This part of the order has caused us some concern primarily because it gives any defendant the opportunity to move, on an ex parte basis to obtain a dismissal of the plaintiff’s claim. However, this term, while unfortunate, does not render the order final.

[6] Accordingly, notwithstanding the able submissions of Ms. Willmot, we conclude that the order is interlocutory. The motion to quash is therefore granted and the appeal is quashed without prejudice to the respondent’s ability to seek leave to appeal to the Divisional Court.

[7] There is no order as to costs.

“Robert P. Armstrong J.A.”

“Gloria Epstein J.A.”

“Karakatsanis J.A.”