Pasquale Doldo (Canadian Construction and Trucking) v. 1497601 Ontario Limited (Weston Gate Gardens), 2014 ONCA 73

Case Summary

On a motion to quash, the court held it lacked jurisdiction over an appeal arising from a construction lien action in which the appellant's statement of defence and counterclaim had been struck and judgment was subsequently obtained. The court treated the judgment below as a default judgment, for which the proper remedy was a motion to set aside rather than an appeal to the Court of Appeal. It further held that any appeal from the master's final order striking the counterclaim lay to the Divisional Court under s. 19(1)(c) of the Courts of Justice Act, and that appeals from final orders in construction lien actions are statutorily directed to the Divisional Court under ss. 70 and 71 of the Construction Lien Act. The appeal was struck and costs were awarded to the respondent.

COURT OF APPEAL FOR ONTARIO

CITATION: Pasquale Doldo (Canadian Construction and Trucking) v. 1497601 Ontario Limited (Weston Gate Gardens), 2014 ONCA 73

DATE: 20140127

DOCKET: M42236 (C56591)

Weiler, Rouleau and Strathy JJ.A.

BETWEEN

Pasquale Doldo c.o.b. as

Canadian Construction and Trucking

Plaintiff (Respondent)

and

1497601 Ontario Limited c.o.b. as

Weston Gate Gardens

Defendants (Appellant)

Kevin Sherkin for the moving party

J. Richard Forget for the respondent

Heard and released orally: January 16, 2014

Motion to quash the appeal from the Judgment of Justice Andra Pollak of the Superior Court of Justice, dated January 9, 2013, the order of Justice Andra Pollak, dated March 22, 2012, and the order of Master Dash, dated June 21, 2013.

ENDORSEMENT

[1] This is a motion to quash on the basis that the court has no jurisdiction. The appellant’s statement of defence and counterclaim were struck by the Master. He initially sought leave to appeal that decision to the Divisional Court but then abandoned that request.

[2] At trial, the appellant was allowed to make submissions but the trial judge found that the respondent had proved its damages. The appellant appealed to this court.

[3] The appellant submits that the decision below was not a default judgment. In addition, he submits that the order striking his counterclaim was a final order and that the appeal lies to this court.

[4] We disagree. The decision below was a default judgment: See National Bank of Canada v. Royal Bank of Canada (1999), 1999 3733 (ON CA), 44 O.R. (3d) 533. The appellant’s proper remedy is a motion to set aside the default judgment.

[5] With respect to the dismissal of the counterclaim, an appeal lies from a final order of a Master to the Divisional Court: s. 19(1)(c) Courts of Justice Act, R.S.O. 1990, c. C 43.

[6] The court was also advised at the conclusion of submissions that in any event as this was a construction lien action the appeal from a final order is statutorily mandated to the Divisional Court. See ss. 70 and 71 Construction Lien Act R.S.O. 1990 c. C 30

[7] For these reasons the appeal is struck.

[8] Costs of the motion are to the respondent fixed in the amount of $5,500 inclusive all applicable taxes and disbursements.

“K. M. Weiler J.A.”

“Paul Rouleau J.A.”

“G. R. Strathy J.A.”

Pasquale Doldo (Canadian Construction and Trucking) v. 1497601 Ontario Limited (Weston Gate Gardens), 2014 ONCA 73

Case Summary

COURT OF APPEAL FOR ONTARIO

BETWEEN

ENDORSEMENT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Legislation 4