Ontario Psychological Association v. Mardonet et al.

[Indexed as: Ontario Psychological Assn. v. Mardonet]

Ontario Reports

Court of Appeal for Ontario,

Simmons, LaForme and Huscroft JJ.A.

December 11, 2015

128 O.R. (3d) 637 | 2015 ONCA 883

Case Summary

Appeal — Final or interlocutory order — Motion judge's order quashing notices of examination being interlocutory — Appeal lying to Divisional Court.

The plaintiff moved for a Mareva injunction against the appealing defendants, who in turn served notices of examination on the responding defendants. The motion judge quashed the notices of examination. The appealing defendants appealed to the Court of Appeal. The responding defendants moved to quash the appeal.

Held, the motion should be granted.

The order under appeal was interlocutory. The fact that the motion judge's decision might finally determine whether the responding defendants could be examined in relation to the Mareva injunction did not make the order final. The [page638] order did not terminate the underlying action or resolve a substantive claim or defence of one of the parties. The appeal lay to the Divisional Court.

Cases referred to

Smerchanski v. Lewis (1980), 1980 1699 (ON CA), 30 O.R. (2d) 370, [1980] O.J. No. 3769, 117 D.L.R. (3d) 716, 18 C.P.C. 29, 5 A.C.W.S. (2d) 343 (C.A.); Waldman v. Thomson Reuters Canada Ltd., [2015] O.J. No. 395, 2015 ONCA 53, 127 C.P.R. (4th) 401, 330 O.A.C. 142, 71 C.P.C. (7th) 33, 249 A.C.W.S. (3d) 251

MOTION to quash an appeal.

Paul D. Stern and Peter-Paul E. Du Vernet, for appellants.

Andrew MacDonald, for respondents.

[1] Endorsement BY THE COURT: -- The issue before us is whether the motion judge's order quashing notices of examination is final or interlocutory.

[2] The Ontario Psychological Association ("OPA") sued the appellants, Mardonet, Benusan and 2181420 Ontario Inc., to recover funds it alleges were misappropriated between 2003 and 2013 by its former employee, Mardonet. In the same action, the OPA alleges that the moving parties, BDO Canada LLP and Penner, were negligent in conducting audits of the OPA's financial statements during the same period and in failing to detect the misappropriation of funds.

[3] After the action was commenced, the OPA moved for a Mareva injunction against the appellants. The appellants, in turn, served notices of examination on BDO and Penner.

[4] The motion judge quashed the notices of examination, holding that the appellants failed to demonstrate that Penner could provide evidence relevant to the Mareva injunction motion and that, in all the circumstances, the notices of examination were an abuse of process.

[5] The moving parties submit that the order under appeal is fundamentally interlocutory because it relates to an examination for the purposes of an interlocutory order.

[6] In response, relying on Smerchanski v. Lewis (1980), 1980 1699 (ON CA), 30 O.R. (2d) 370, [1980] O.J .No. 3769 (C.A.), and other similar authorities, the appellants submit that the order is final. In Smerchanski, this court held that at an order quashing a summons to a non-party witness during a trial was final because the order finally disposed of the rights of the party who issued the summons and the non-party in the issue raised between them.

[7] In this case, to date, the OPA has not required that BDO and Penner file a defence. Further, BDO and Penner are not [page639] responding parties to the Mareva injunction motion. The appellants submit that, in these circumstances, the moving parties are the effective equivalent of non-parties. The motion judge's order, which would otherwise be final, should not become interlocutory simply because of the happenstance that the OPA named BDO and Penner as parties to the action. In any event, the motion judge's order finally determines a significant issue: the question whether the moving parties can be examined -- and their evidence obtained -- in relation to the Mareva injunction.

[8] We conclude that the order under appeal is interlocutory and that the appeal must be quashed. The key factor in this court's decision in Smerchanski was that the summons was issued to a non-party. That is not this case. The moving parties are parties to the action. The reasoning in Smerchanski does not apply. The order under appeal does not finally determine whether the moving parties can be examined in the action.

[9] Further, the fact that the motion judge's decision may finally determine whether the moving parties can be examined in relation to the Mareva injunction does not make the motion judge's order final. The motion judge's order does not terminate the underlying action or resolve a substantive claim or defence of one of the parties. To hold that the motion judge's order is final because it determines whether parties to an action can be examined in relation to an interlocutory motion would effectively eliminate the distinction between interlocutory and final orders: see Waldman v. Thomson Reuters Canada Ltd., [2015] O.J. No. 395, 2015 ONCA 53, at para 22.

[10] The appeal is quashed without prejudice to the appellants' right to seek an extension of the time for applying for leave to the Divisional Court. Costs of the motion are to the moving parties on a partial indemnity scale fixed in the amount of $2,500, inclusive of disbursements and applicable taxes.

Motion granted.

End of Document