Court of Appeal for Ontario

Citation: Xela Enterprises Ltd. v. Castillo, 2014 ONCA 275 Date: 2014-04-07 Docket: M43431 (C58295)

Before: Cronk, Gillese and Strathy JJ.A.

IN THE MATTER OF XELA ENTERPRISES LTD., AND IN THE MATTER OF 696096 ALBERTA LTD. AND IN THE MATTER OF THE ONTARIO BUSINESS CORPORATIONS ACT

BETWEEN

Xela Enterprises Ltd., Gabinvest S.A., Lisa S.A., Juan Arturo Gutiérrez, Juan Guillermo Gutiérrez and 696096 Alberta Inc. Plaintiffs/Respondents (Moving Parties)

and

Margarita Castillo, Roberto Ricardo Castillo, Juan Luis Bosch Gutiérrez, Dionisio Gutiérrez Mayorga, Juan Jose Gutiérrez Mayorga, Felipe Antonio Bosch Gutiérrez, Roberto Barillas Castillo, Isabel Gutiérrez de Bosch, La Braña, S.A., Multi-Inversiones, S.A., Villamorey, S.A. and Avicola Villalobos S.A. Defendants/Appellants (Responding Parties)

Counsel: Kevin Richard and Martin Mendelzon, for the respondents/moving parties Katherine L. Kay and Ellen M. Snow, for the appellants/responding parties

Heard and released orally: April 3, 2014

On appeal from the order of Justice J.A. Thorburn of the Superior Court of Justice, dated January 20, 2014.

ENDORSEMENT

[1] The respondents move to quash this appeal on the ground that the order sought to be appealed, the order of Thorburn J. of the Superior Court of Justice, dated January 20, 2014 (the “Thorburn Order”), is interlocutory, rather than final, in nature. The Thorburn Order: (a) declared that personal service of the respondents’ fresh statement of claim had been effected on the four corporate appellants, and (b) validated service of the claim on the five individual appellants.

[2] We agree that the Thorburn Order is an interlocutory order.

[3] The Thorburn Order does not determine the real matters in dispute between the parties nor, as the appellants acknowledge, does it deprive the appellants of any substantive defence, including the right to challenge the jurisdiction of the Ontario courts over the matters at issue. Although the Thorburn Order determined the issue raised on the motion below – the validity of the respondents’ efforts to effect service of their amended pleading – it did not address the merits of the underlying action or the lis between the parties. Moreover, any defences that the appellants had before this action was commenced are still alive. The Thorburn Order, therefore, is interlocutory in nature: see Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, 4 D.L.R. 580 (C.A.); Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322, 64 O.A.C. 85 (C.A.); Nantais v. Telectronics Proprietary (Canada) Ltd., [1996] O.J. No. 1220, 62 A.C.W.S. (3d) 422 (C.A.). See also Satchidananthan v. Sivanesan, 2013 ONSC 7515 (Sup. Ct.).

[4] It follows that the proper appeal route in respect of the Thorburn Order is to the Divisional Court, with leave, in accordance with s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”).

[5] The decision in Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 2403 (ON CA), 19 O.R. (3d) 97, 117 D.L.R. (4th) 373 (C.A.) does not dictate a contrary conclusion. Buck Bros. involved a situation in which the challenged court order had the effect of terminating the proceeding then before the court. That is not this case.

[6] Accordingly, the motion is allowed and the appeal is quashed.

[7] As we have said, this does not deprive the appellants of the right to appeal the Thorburn Order, in accordance with s. 19(1)(b) of the CJA and Rule 62.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In the particular circumstances of this case, it is appropriate to transfer this matter to the Divisional Court under s. 110 of the CJA so that the appellants can seek leave to appeal the Thorburn Order in that court, and we so order.

[8] The respondents (the moving parties) are entitled to their costs of this motion, fixed in the total amount of $5,000, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“G.R. Strathy J.A.”