COURT OF APPEAL FOR ONTARIO

CITATION: Carleton Condominium Corporation No. 396 v. Burdet, 2012 ONCA 169

DATE: 20120319

DOCKET: M40977 (C54549) and M40992 (C54548)

Goudge, Sharpe and Blair JJ.A.

M40977

BETWEEN

Carleton Condominium Corporation No. 396 Plaintiff/Respondent (Moving Party)

and

Claude-Alain Burdet, Claude-Alain Burdet in Trust, 1457563 Ontario Corporation, 1457563 Ontario Corporation in Trust, Janet Sue Burdet, Nelson Street Law Offices, L’Academie Christiane Sauve Inc., and International Beauty Depot Defendants/Appellants (Responding Parties)

M40992

AND BETWEEN

Patrick Dewan, Domicile Developments Inc., 1436984 Ontario Ltd., Amira Gabriel, 1496055 Ontario Inc., 117490 Canada Ltd., and Sheila Eberts Plaintiff/Respondents (Responding Parties)

and

Claude-Alain Burdet, in Trust Defendant/Appellant (Moving Party)

APPLICATION UNDER section 135 of the Condominium Act, 1998, Converted into an ACTION in consent, in November 2001.

Counsel:

Janice B. Payne, for the moving party Carleton Condominium Corporation No. 396

Jonathan H. Fine, for the responding parties Claude-Alain Burdet, Claude-Alain Burdet in Trust, 1457563 Ontario Corporation, 1457563 Ontario Corporation in Trust, Nelson Street Law Offices and Janet Sue Burdet

Jeffrey Radnoff, for the moving parties Patrick Dewan, Domicile Developments Inc., 1436984 Ontario Ltd., Amira Gabriel, 1496055 Ontario Inc., 117490 Canada Ltd., and Sheila Eberts

Charlene Kavanagh, for the court-appointed Administrator

Heard and released orally: March 13, 2012

On motions to quash the appeals from the judgment of Justice Paul Kane of the Superior Court of Justice, dated September 30, 2011.

ENDORSEMENT

The Dewan et al Motion

[1] In our view, the moving parties are correct that this appeal is from an order dismissing claims for orders that would be interlocutory. The order appealed from does not finally dispose of any defences that are sought to be raised at trial. The moving parties acknowledge that the trial will begin with a clean slate.

[2] The motion succeeds. This appeal is quashed.

The Carleton Condominium Corporation No. 396 Motion

[3] We agree with the moving party that this appeal seeks to challenge parts of the order of December 12, 2011, that are interlocutory.

[4] We refer here to paras. 1, 4, 5, 7 and 8. None of these finally dispose of an issue properly to be disposed of at trial. It is conceded that para. 6 removes a defence at trial. That makes it a final order in our view, even though, despite this order, the defendants/appellants can properly advance the issue of their alleged overpayment as part of their own claim, and para. 7 provides that if they succeed that will be credited against anything they are found to owe.

[5] While it therefore appears to make little practical difference, the motion seeking to quash the appeal from para. 6 is dismissed. Otherwise it is allowed.

[6] The costs order to the moving parties in the Dewan motion will be $5,000 inclusive of disbursements and applicable taxes. The costs order to the moving party in the Condominium motion will be $7,500 inclusive of disbursements and applicable taxes. There will be no costs for the Administrator.

"S.T. Goudge J.A."

"Robert J. Sharpe J.A."

"R.A. Blair J.A."