COURT OF APPEAL FOR ONTARIO

CITATION: Henderson v. Henderson, 2014 ONCA 571

DATE: 20140801

DOCKET: M43773/M43864

Juriansz J.A. (In Chambers)

BETWEEN

Scott Henderson

Applicant (Appellant in Appeal)

and

Suzanne Ruth Henderson

Respondent (Respondent in Appeal)

Simon Zucker and Nancy Tourgis, for the applicant

William Fanjoy, for the respondent

Heard and released orally: July 31, 2014

On motion to extent time to perfect the appeal and on motion to quash the applicant’s motion.

ENDORSEMENT

[1] In this family law proceeding, the husband applies for an extension of time to perfect his appeal and the wife applies for security for costs and a variety of conditions to be imposed on the husband. At the outset, counsel for the wife stated his position that the order under appeal is interlocutory in nature. I indicated to counsel that I did not have jurisdiction to decide that question but that the view I took of that question could be a factor in determining the husband’s motion to extend time to perfect his appeal. If time were not extended, the appeal would be dismissed and the wife’s motion would become moot. On that basis we proceeded to deal with the motion to extend time first.

[2] I need not review the long and fractious history of this proceeding. It is sufficient to say that the husband filed a motion in the Superior Court for various directions with a view to varying the final support orders in place. The wife filed a motion to quash the husband’s motion. Both motions were placed on the long motions list. A number of appearances followed and the matter came before Justice Barnes, who made the order under appeal. He made an order that stipulated a number of conditions that the husband had to satisfy before he could proceed with his long motion. These conditions included the payment of arrears and outstanding costs orders.

[3] Generally, it is clear that the stipulation of terms on which parties may proceed to a final determination of a proceeding is interlocutory. In fact the formal order of Justice Barnes indicates on its face that it is “Temporary”. The cause of difficulty in this case is that Justice Barnes imposed a wrap-up term in his order that if the husband failed to comply with a number of the terms specified earlier in his order by February 12, 2014, his long motion would be “permanently stayed with prejudice.”

[4] The main authority I was provided with, Laurentian Plaza Corp. v. Martin (1992), 1992 7561 (ON CA), 7 O.R. (3d) 111 (C.A.), deals generally with whether orders made on condition are interlocutory or final. Morden J.A. said:

It can, of course, be fairly said that the effect of the order will be final if the conditions are not met. This is what makes the question a difficult one.

One aspect of the difficulty is that orders made on condition vary greatly. For example, they may range from orders imposing: undertakings on defendants; strict time periods for the completion of the pre-trial steps; the obligation to pay the plaintiff's costs thrown away; to the giving of security in varying amounts with respect to the plaintiff's claim. As a matter of policy it may seem that some of these orders, which, analytically, are interlocutory, might be appropriately treated as final -- but, if this were to be done, where would the line be drawn and how could the definition of what is final be expressed so that it could be applied with some degree of predictability or confidence?

Neither can the nature of the order reasonably turn on the particular circumstances of the defendant. The question of categorization which determines access to appellate review must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case. As I have indicated, jurisdictional rules should be as clear as possible and their application should not be beset with factual disputes which themselves may be protracted and difficult to resolve.

Further, the consideration that the order may have the effect of terminating the proceeding does not mean that it is a final one. See Chesapeake & Ohio Railway Co. v. Ball, 1953 126 (ON CA), [1953] O.R. 877 (C.A.) and Ontario Medical Association v. Miller 1976 679 (ON CA), (1976), 14 O.R. (2d) 468, 2 C.P.C. 125 (C.A.).

[5] Counsel for the husband submits this reasoning does not apply in this case because February 12, 2014 has come and gone without the husband satisfying the conditions. At the time the notice of appeal was filed, which was after February 12, 2014, the order of Justice Barnes had, in effect, determined his long motion finally.

[6] I provided counsel with a more recent decision of this court, Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642. The case is not on point because it deals with the jurisdiction of a Superior Court judge to review an arbitration decision. But at para. 26, Sharpe J.A. offers an interpretation of Laurentian Plaza Corp. which I find pertinent. He said:

I recognize that failure to satisfy an order for security for costs may lead to a dismissal of the claim, but the sanction for non-compliance with an order cannot alter the nature of the order itself. Many procedural or interlocutory orders – for particulars, for production of documents, for the payment of costs ordered in interlocutory proceedings – may carry the ultimate sanction of dismissal of the non-complying party’s claim. But if the claim is dismissed, the dismissal flows from the party’s failure to comply with the interlocutory or procedural order, not from the order itself, and does not alter the interlocutory or procedural nature of the order that led to dismissal: see Laurentian Plaza Corp. v. Martin(1992), 1992 7561 (ON CA), 7 O.R. (3d) 111 (C.A.).

[7] In my view this reasoning applies in this case. If Justice Barnes’ order has had the effect of permanently staying the husband’s long motion, the stay has resulted not from the nature of the order itself but from the husband’s failure to satisfy the conditions that the order imposed. The overall intention and effect of Justice Barnes’ order was to impose terms to shepherd the proceeding along to the final hearing and disposition of the long motion.

[8] It is my opinion that the order under appeal is interlocutory. To obtain an extension of time a party must demonstrate the proposed appeal is not meritless. An appeal of an interlocutory order filed in this court is meritless. I see no purpose in extending the time for the perfection of a matter that is not properly before this court.

[9] The husband’s motion for the extension of time is refused. The Registrar may dismiss his appeal for failure to adhere to the time limits. The wife’s motion is moot.

[10] Costs of the motions and of the appeal are fixed in the amount of $24,000.00 all inclusive, enforceable as support.

“R.G.Juriansz J.A.”