Court of Appeal for Ontario

CITATION: Knew Order Co. Ltd. v. 2291955 Ontario Inc., 2013 ONCA 559

DATE: 20130916

DOCKET: C56596

Weiler, Rouleau and Pepall JJ.A.

BETWEEN

Knew Order Co. Ltd.

Plaintiff (Respondent)

and

2291955 Ontario Inc., carrying on business as Tai Groups Inc. and Chia Yang [also known as “James”] Shen

Defendants (Appellants)

Counsel:

Brian N. Radnoff and Lucas E. Lung, for the appellants

Stephanie Turnham, for the respondent

Heard: September 9, 2013

On appeal from the order of Justice Victoria R. Chiappetta of the Superior Court of Justice, dated January 23, 2013.

ENDORSEMENT

[1] Although the appellants may have erred in the procedure followed to set aside the declaration contained in para. 2 of the order of Chapnik J., dated May 22, 2012, both parties agree that that declaration is a final order and, if made in error, is subject to review in this court.

[2] The jurisdiction and propriety of having made the declaration in the context of an interlocutory motion has been fully argued on this appeal. Thus, in our view, it is in the interest of justice that we deal with the issue despite the appellants’ procedural errors. The only prejudice that might be suffered by the respondent is with respect to costs.

[3] In our view, the decision of Chapnik J. was not intended to be a final determination regarding the applicability of the Repair and Storage Liens Act, R.S.O. 1990, c. R.25. Chapnik J. was dealing with an interlocutory motion on a preliminary record. Moreover, the declaration in para. 2 of the order of Chapnik J. had not been sought by the respondent on that motion. Because the declaration was nevertheless included in the order as issued, it deprived the appellants of a substantive defence and did so at a preliminary stage of the proceeding without affording the appellants the opportunity to prepare a complete record.

[4] Accordingly, we agree with the appellants that the declaration ought to be set aside. In the result, the motion is allowed, and the order of Chiappetta J. is varied to allow the removal of para. 2 of the order of Chapnik J.

[5] In our view, this appeal stems mainly from procedural errors committed by the appellants. Accordingly, we would not interfere with the costs below. We are also of the view that the costs of the appeal ought to be awarded to the respondent fixed in the amount of $7000, inclusive of disbursements and applicable taxes, even though the respondent was not successful on appeal.

“K.M. Weiler J.A.”

“Paul Rouleau J.A.”

“S.E. Pepall J.A.”