COURT OF APPEAL FOR ONTARIO

CITATION: John Deere Financial Inc. v. 1232291 Ontario Inc. (Northern Haul Contracting), 2016 ONCA 838

DATE: 20161108

DOCKET: C61616

Hoy A.C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

John Deere Financial Inc.

Plaintiff (Respondent)

and

1232291 Ontario Inc. o/a Northern Haul Contracting, Ryan Bignucolo, Richard Bignucolo, Lucia Bignucolo, Bignucolo Incorporated, Chapleau Village Shops Inc., 1039442 Ontario Inc. and 1558738 Ontario Inc.

Defendants (Appellants)

AND BETWEEN:

1232291 Ontario Inc. o/a Northern Haul Contracting, Ryan Bignucolo, Richard Bignucolo, Lucia Bignucolo, Bignucolo Incorporated, Chapleau Village Shops Inc., 1039442 Ontario Inc. and 1558738 Ontario Inc.

Plaintiffs by Counterclaim

and

John Deere Financial Inc., Eacom Timber Corporation and Nortrax Canada Inc.

Defendants by Counterclaim

Christopher J. Cosgriffe and Ryan R. Watkins, for the appellants

John P. O’Toole, for the respondent

Heard: September 15, 2016

On appeal from the judgment of Justice G. Patrick Smith of the Superior Court of Justice, dated December 10, 2015, with reasons reported at 2015 ONSC 7467.

Hoy A.C.J.O.:

[1] The appellants appeal the grant of summary judgment against the appellant 1232291 Ontario Inc., carrying on business as Northern Haul Contracting, in the amount of $2,206,448.34, and against the other appellants in the amount of $500,000, in each case plus interest.

[2] The respondent, John Deere Financial Inc., seeks to cross-appeal the stay of execution of the judgment pending the completion of the trial of, and release of a decision on, the counterclaim.

[3] For the reasons that follow, I would dismiss the appeal and quash the cross-appeal on the basis of lack of jurisdiction.

[4] I will first set out the background of this matter. Then I will set out the issues the appellants raise on appeal and my analysis of those issues. Finally, I will briefly explain why I would quash the respondent’s cross-appeal.

Background

[5] The appellant Northern Haul Contracting entered into an agreement with Eacom Timber Corporation (the “Eacom Contract”) to harvest and deliver timber to Eacom. To fulfill its obligations to Eacom, it needed certain forestry equipment.

[6] Northern Haul entered into six Commercial Lease Agreements (the “Leases”) with Nortrax Canada Inc. between February 22, 2011 and April 29, 2011 pursuant to which it leased six pieces of forestry equipment. The Leases required Northern Haul to make monthly payments over 48 months. The aggregate rental payments required under the Leases for the entire term amounted to $3,462,545.40. Each Lease provided that at the end of its 48-month term, Northern Haul would have the option to purchase the leased equipment for $1.00.

[7] The Leases contain broad exclusion clauses, (reproduced later in these reasons), including a provision (section 27) that states that Northern Haul’s obligations under the Leases “shall continue in full force and effect regardless of the inability of Lessee to use the Equipment for any reason whatsoever…”

[8] Section 28 of each of the Leases provides, “This Lease is entered into with a view that it will be assigned immediately by [Nortrax] to [John Deere Limited] and may be further assigned by [John Deere Limited]. Lessee hereby consents to the assignment of this Lease to [John Deere Limited] or any other assignee.” On their face, the Leases provide: “Note: All Lessor’s rights and benefits under this lease, and all lessor’s interest in the property have been assigned to John Deere Limited”.

[9] The evidence of John Winger, the former Vice-President of Canadian Operations for the respondent, is that John Deere Limited assigned the Leases to the respondent. At the time of the assignments, the respondent was known as “John Deere Credit Inc.”. It later changed its name to John Deere Financial Inc.

[10] On the date the first Lease was signed, the other appellants – Ryan Bignucolo, Richard Bignucolo, Lucia Bignucolo, Bignucolo Incorporated, Chapleau Village Shops Inc., 1039442 Ontario Inc. and 1558738 Ontario Inc. – executed guarantees in favour of the respondent of any obligations of Northern Haul to the respondent, past, present or future. The obligation of the guarantors under the guarantees is limited to $500,000 plus interest and costs of enforcing the guarantee on a solicitor and client basis.

[11] On July 6, 2011, Nortrax, as seller, and Northern Haul, as buyer, entered into a Repair and Engine Overhaul Finance Agreement (the “Finance Agreement”) for an engine. The price of the engine was $35,084.24 and it was to be paid through five monthly installments. Like the Leases, the Finance Agreement provided for immediate assignment to John Deere Limited and for further assignments without the consent of Northern Haul. John Winger’s evidence is that the Finance Agreement was assigned to the respondent.

[12] On August 2, 2011, Eacom terminated the Eacom Contract. On August 22, 2011, Northern Haul defaulted in payment under the Leases. On August 22 and 23, 2011, the respondent issued demand letters to Northern Haul and the other appellants. Northern Haul subsequently returned the leased equipment to the respondent, and the respondent sold the six pieces of leased equipment. It recovered approximately $1,900,000, net of tax and inclusive of repairs. The appellants did not argue that the sale process was not commercially reasonable.

[13] The respondent commenced an action against the appellant Northern Haul for the balance owing under the Leases and Finance Agreement and against the other appellants under the guarantees they had provided to the respondent.

[14] In their statement of defence, the appellants plead that the assignments of the Leases and the Finance Agreement to the respondent were invalid and the respondent has no capacity to make any claim thereunder. In the alternative, they plead that: Nortrax failed to provide the leased equipment in good condition and failed to keep an appropriate supply level of parts; the respondent, as assignee of the Leases, is liable for all losses caused by Nortrax; and they are entitled to legal or equitable set-off of any damages Northern Haul suffered due to the malfunctioning equipment. They also plead that because Nortrax breached the Leases, the respondent, as assignee, is estopped from asserting a claim against the appellants.

[15] The appellants counter-claimed against Nortrax, the respondent and Eacom. They allege that Nortrax breached the Leases by failing to supply properly working equipment and that the respondent, as assignee, is also liable for this breach. They further allege that Eacom wrongfully terminated the Eacom Contract.

[16] The respondent brought a motion for summary judgment against the appellants. Summary judgment was not sought in relation to the counterclaim.

[17] The motion judge found that the respondent was the assignee of the Leases. He also found that the exclusion clause was clearly drafted, is applicable and is not unconscionable. The contracts were not improvident. The parties were sophisticated commercial entities who had independent legal advice and equal bargaining power. And there was no public policy that would justify overriding the parties’ freedom of contract. He granted summary judgment against Northern Haul and the other appellants, relying on the calculations of John Winger as to the amount owing, but stayed execution pending the completion of the trial and release of a decision on the counterclaim.

Issues on appeal

[18] The appellants advance four main arguments on appeal:

1. Their principal argument is that the motion judge should have concluded that whether the respondent is the assignee of the Leases, and therefore has capacity to make its claim, is a genuine issue requiring a trial. They submit that John Winger’s evidence that the respondent is the assignee of the Leases was not credible and not sufficient to ground the motion judge’s finding. They argue that the motion judge’s finding that the respondent is the assignee of the Leases is a palpable and overriding error.

2. They argue that the motion judge made a palpable and overriding error in accepting John Winger’s calculation of the amounts owing under the Leases and the Financing Agreement. They say that the amount owing is a genuine issue requiring a trial.

3. They submit that the motion judge erred in his application of Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4. They say that the exclusion clause in the Leases did not apply in the circumstances, and, even if it did, it is unconscionable and there are public policy reasons for not enforcing it. Further, they argue that Tercon does not preclude them asserting that Nortrax repudiated the Leases, thereby excusing Northern Haul from its obligation to make payments under the Leases.

4. Finally, they say their counterclaim against Nortrax involves the same issues as their defence to the respondent’s claim and that the grant of summary judgment before trial of their counterclaim accordingly raises the risk of inconsistent decisions. And, because the respondent’s claim and their counterclaim raise the same issues, granting summary judgment did not serve the goals of timeliness, affordability and proportionality espoused in Hyrniak v. Mauldin, 2014 SCC 7.

[19] I will address these arguments in turn.

Issue 1: The respondent is the assignee of the Leases

[20] The appellants’ argument arises out of an agreement entered into by John Deere Limited and the respondent in 1996. The 1996 agreement provides that when John Deere Limited accepts an assignment of leases “as described in Section 1.4 hereof” from Nortrax and wishes to sell them to the respondent, it shall forward them to the respondent. The 1996 agreement continues:

[The respondent] may, in its discretion, accept or reject any one or more of the contracts or leases offered for sale by [John Deere Limited]. The sale of any contract or lease or group of contracts or leases shall not be completed until such contracts or leases are accepted by [the respondent] at Edmonton, Alberta, as evidenced by a credit memorandum issued by [the respondent] in favour of [John Deere Limited].

It shall not be necessary that the sale of contracts and leases by [John Deere Limited] to [the respondent] be evidenced by endorsements on individual contracts or by assignments on individual leases and a sale shall be deemed complete and effective as to the parties hereto upon acceptance thereof by [the respondent] in the manner outlined above.

[21] Mr. Winger deposed that the assignment to the respondent was pursuant to the 1996 agreement and appended a redacted copy of the 1996 agreement to his affidavit. The appellants argue that the motion judge should have rejected Mr. Winger’s evidence and found that there was a genuine issue requiring a trial because Mr. Winger did not also produce (a) a copy of s. 1.4, referred to in the redacted copy of the 1996 agreement, and (b) a credit memorandum issued by the respondent in favour of John Deere Limited.

[22] I reject this argument.

[23] The motion judge was entitled to accept the evidence of John Winger that the respondent was the assignee of the Leases without requiring a mini-trial or a trial. In addition to Mr. Winger’s evidence, the following supported the motion judge’s decision:

1. The Leases provided for the immediate assignment from Nortrax to John Deere Limited and further assignment in the lessor’s discretion, without consent of the lessee;

2. The assignor, John Deere Limited, did not contest the assignment;

3. It is undisputed that Nortrax, John Deere Limited and the respondent are within the same corporate group of companies;

4. The 1996 agreement between John Deere Limited and the respondent provides for the assignment of leases from John Deere Limited to the respondent;

5. The guarantees were provided to the respondent and not John Deere Limited;

6. On cross-examination, Ryan Bignucolo admitted that the party that Northern Haul owed money to was John Deere Credit, which is the respondent, carrying on business under its former corporate name; and

7. The leased equipment was returned to, and sold by, the respondent.

[24] The motion judge’s conclusion that the respondent is the assignee of the Leases and that this issue is not a genuine issue requiring a trial is overwhelmingly supported by the record.

Issue 2: The amount owing is not a genuine issue requiring a trial

[25] The appellants argue that there were several calculations of the amount owing, and the motion judge erred by accepting Mr. Winger’s calculation. They say that the amount owing is a genuine issue requiring a trial.

[26] They further submit that the respondent’s calculation of the amount owing was not in accordance with s. 23(d) of the Leases. An element of the calculation under s. 23(d) is “the present value as at the date of demand of all future, unpaid rentals and other scheduled payments, if any, in respect of the unexpired original Term of Lease and any extension thereof, including any such amounts that would become owing hereunder but for any termination of this Lease”. [Emphasis added.]

[27] I reject these arguments.

[28] Respectfully, the only evidence before the motion judge as to the amount owing was that of Mr. Winger. And there was no evidence before the motion judge that the respondent did not make the calculation described in s. 23(d), in accordance with s. 23(d).

[29] In his first affidavit, sworn October 4, 2013, Mr. Winger accounted for the sale proceeds and deposed that the total amount owing as of February 1, 2013 on account of the Leases and the Finance Agreement was $1,397,253.33, together with costs, and that interest at the rate of 24% per annum continued to accrue from February 14, 2013.

[30] In his affidavit sworn December 18, 2013, Ryan Bignucolo asserted that the amount claimed was too high. He deposed that the Deficiency Summary attached to Mr. Winger’s first affidavit did not seem consistent with the documents provided by Mr. Winger and John Deere in 2011 and 2012. The Notices of Intention to Enforce Security issued by the respondent on August 22 and 23, 2011 claimed lesser amounts owing. And subsequent emails and correspondence from Mr. Winger in 2011, while seeming to claim greater amounts than in the Notices of Intention to Enforce Security, still claimed less than the amount claimed in Mr. Winger’s affidavit.

[31] In his supplementary affidavit, sworn June 24, 2014 in response to the affidavit of Ryan Bignucolo, Mr. Winger explained that the figures provided by him throughout the remarketing process did not include expenses and charges that the respondent is entitled to receive pursuant to the Leases. (The respondent is entitled to deduct the cost of repairing equipment returned to it, marketing costs and its legal costs on a “solicitor and client” basis.) At paras. 32-33, he deposed as follows:

The figures provided by me early on in the process were discounted in an effort to resolve the matter without litigation and without incurring legal costs. The numbers were provided by me on the expectation that payment would be made immediately by [Northern Haul]. Unfortunately, [Northern Haul] has not made any payments towards the deficiencies despite the fact that it has been almost two years since [Northern Haul] first defaulted on the Leases.

This affidavit provides information on the amounts which [the respondent] is legally entitled to receive in accordance with the contractual terms agreed upon by [the appellants].

[32] Mr. Winger then provided a detailed accounting in respect of each of the six pieces of leased equipment, setting out in relation to each, to the extent applicable, sales and marketing costs, repair costs, late payment charges, bailiff fees, transportation expenses, applicable HST and interest charges. He provided considerable supporting documentation. He calculated that the total amount owing as of May 30, 2014 was $2,206,448.34.

[33] When cross-examined on this issue, Mr. Winger explained that different people prepared the calculations in his first and second affidavit, and that for his second affidavit, the respondent had the opportunity to go back and reconcile all of the supporting detail. He also explained that he thought that one of the differences was to give effect to the present value concept in the contract. The appellants did not challenge Mr. Winger as to how the respondent’s present value calculation under s. 23(d) was done, or provide evidence or even suggest that it should have been calculated differently. Mr. Winger was unshaken in his evidence that the amount deposed to in the second affidavit was the correct amount.

[34] The amount owing does not appear to have been a serious issue before the motion judge. He accepted the calculation in Mr. Winger’s second affidavit. There is no basis to interfere with his decision to do so.

Issue 3: Tercon

[35] Whether the exclusion clause applies in the circumstances is a question of mixed fact and law. The motion judge’s conclusion that the exclusion clauses prevent Northern Haul from raising equipment malfunction as a defence to the respondent’s claim for unpaid rent is reasonable, and there is no basis to interfere with it. The exclusion clauses were not unconscionable at the time that the Leases were entered into and the appellants did not identify any public policy that would justify overriding the very strong public interest in the enforcement of contracts.

[36] Further, I agree with the motion judge that whether Northern Haul did or did not receive what it bargained for from Nortrax does not affect the respondent’s ability to rely on the exclusion clause.

[37] Sections 15, 27 and 31 of the Leases provide as follows:

27. Obligation Absolute: This Lease is irrevocable and may not be cancelled or terminated except as expressly provided for herein. Lessee’s obligations hereunder are absolute and unconditional. Lessee shall perform same without any deduction, defence, counterclaim, compensation, or set-off and without demand therefor. Without limiting the generality of the foregoing, Lessee’s obligations hereunder shall continue in full force and effect regardless of the inability of Lessee to use the Equipment for any reason whatsoever, including without limitation, wear and tear, act of God, force majeure, government regulations, strike, loss or damage, obsolescence or Equipment failure.

28. No warranty, Etc.: Lessee acknowledges that there are no representations, warranties, terms, conditions or collateral agreements, written or oral, express or implied, statutory or otherwise, on the part of the Lessor with respect to the ownership, quality, condition, merchantability or fitness for any particular purpose of the Equipment. If the Equipment does not operate as represented or warranted by the supplier or manufacturer, or is unsatisfactory for any reason, Lessee shall make any claims solely against the supplier or manufacturer and shall nevertheless make all rental payments required herein. Lessee’s obligations hereunder to Lessor will in no way be affected by any seller’s distributor’s or manufacturer’s representations, warranties or guarantees with respect to the Equipment, express or otherwise, which may exist in lessee’s favour. Lessor will assign to Lessee, solely for the purpose of making and prosecuting such claim, all of the rights Lessor has against any seller, distributor or manufacturer of the Equipment for breach of representations, warranties or guarantees with respect to the Equipment.

29. Miscellaneous: This Lease together with any return provisions provided with this Lease constitutes the entire agreement between the parties with respect to the Equipment described above. There are no conditions, covenants, agreements, understandings, representations, warranties or other provisions, oral or written, express or implied, collateral, statutory or otherwise, relating to the Equipment except as herein provided.

The motion judge did not err in concluding that the exclusion clauses apply

[38] Section 27 provides that Northern Haul’s obligations under the Leases are unconditional and that it will perform them “without any …defence… or set-off” and that, “[w]ithout limiting the generality of the foregoing, [Northern Haul’s] obligations hereunder shall continue in full force and effect regardless of the Lessee’s inability to use the Equipment for any reason whatsoever…”

[39] Section 15 provides that, “If the Equipment does not operate as represented or warranted by the supplier or manufacturer, or is unsatisfactory for any reason, [Northern Haul] shall make any claims solely against the supplier or manufacturer and shall nevertheless make all rental payments required herein. [Northern Haul’s] obligations hereunder to Lessor will in no way be affected by any seller’s, distributor’s or manufacturer’s representations, warranties or guarantees with respect to the Equipment, express or otherwise, which may exist in lessee’s favour.”

[40] In my view, the motion judge reasonably concluded that the combined effect of these provisions is that Northern Haul’s obligation to make payments under the Leases is not affected by the defence it advances. Northern Haul’s defence is founded on representations and warranties allegedly made by Nortrax to Northern Haul with respect to the Equipment and Northern Haul’s inability to use some of the equipment.

[41] The evidence of Ryan Bignucolo is that in discussions before the Leases were signed, Nortrax assured Northern Haul that it had all the necessary parts to fix any problems with the equipment and that it could fix any problem quickly. He says that Nortrax also promised that it or John Deere would be able to provide high level training for operators of the leased equipment, but no training was provided until the week of July 4, 2011. In my view, these alleged representations and warranties are “with respect to the Equipment.”

[42] In Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, at p. 39, the Supreme Court of Canada held that the words “in respect of” are “words of the widest possible scope”; the phrase is “probably the widest of any expression intended to convey some connection between two related subject matters”. The Supreme Court later applied the same interpretation to the words “with respect to”: CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, at paras. 15-17. Admittedly, both of these cases concerned statutory language rather than contractual language, but in both cases the Supreme Court was defining the “ordinary meaning” of the words, not a technical meaning for the purposes of statutory construction. Therefore, these words signal that the scope of the exclusion clause is broad.

[43] Mr. Bignucolo deposes that right from the first hour of operation, Northern Haul began to experience problems with the forestry equipment. He says that, among other things, the computer system that was supposed to track production did not work properly; Northern Haul was unable to use one of the “Forwarders” for several weeks, while Nortrax repaired the “differential”; and the “Log Loader” began to malfunction in May 2011. Mr. Bignucolo says there was so much downtime that Northern Haul missed all of its targets under the Eacom Contract.

[44] Northern Haul in essence claims that the equipment was “unsatisfactory” and it was unable to use some of it.

[45] The exclusion clauses specifically contemplate non-performance by the supplier or manufacturer, and specifically provide that Northern Haul is not excused from its performance of the Leases as a result of the non-performance of those parties. The contract is unambiguous on these points, so the contra proferentem canon does not apply: Victory (Rural Municipality No. 226) v. Saskatchewan Guarantee and Fidelity Co., 1928 CanLII 92 (SCC), [1928] S.C.R. 264, at p. 273; Arthur Andersen Inc. v. Toronto-Dominion Bank (1994), 1994 CanLII 729 (ON CA), 17 O.R. (3d) 363 (C.A.), at p. 371, leave to appeal to S.C.C. refused, (1994) 19 O.R. (3d) xvi. I agree with the motion judge’s conclusion that the exclusion clauses apply and that non-performance by Nortrax does not affect the respondent’s ability to rely on the exclusion clause.

The exclusion clauses are not unconscionable and there is no overriding public policy that outweighs the very strong public interest in the enforcement of contracts

[46] The motion judge found that the Leases were not improvident and the parties were sophisticated commercial entities who had independent legal advice and equal bargaining power. There is no basis to interfere with those findings.

[47] Further, I note Ryan Bignucolo’s evidence that Northern Haul had discussions with Toromont Industries Ltd. about leasing Caterpillar forestry equipment instead of John Deere forestry equipment. Northern Haul had an option not to enter into the Leases. There was no evidence that the Leases were put to Northern Haul on a “take it or leave it” basis.

[48] The onus was on Northern Haul to prove that there was an overriding public policy that outweighed the very strong public interest in the enforcement of contracts: Tercon, at para. 123. The motion judge concluded that there were no public policy reasons not to enforce the Leases and on appeal the appellants do not point to any public policy that militates against enforcement.

The appellants cannot argue that the exclusion clause is not applicable because Nortrax repudiated the Leases

[49] As I explained above, the exclusion clause in s. 27 specifically addresses non-performance by Nortrax. I have concluded that this exclusion clause was enforceable. Therefore, s. 27 is part of the bargain between the parties, and non-performance by Nortrax cannot be said to deprive the appellants of “substantially the whole benefit of the contract” and render s. 27 of no effect: Spirent Communications of Ottawa Ltd. v. Quake Technologies (Canada) Inc., 2008 ONCA 92, 88 O.R. (3d) 721, at para. 35.

Issue 4: The appellants’ counterclaim against Nortrax does not raise the same issues as its defence to the respondent’s claim

[50] I reject the appellants’ argument that their counterclaim will raise the same issues as their defence to the respondent’s claim.

[51] The appellants acknowledge that their counterclaim is primarily directed at Nortrax, as the supplier of the leased equipment. The appellants plead that Nortrax agreed to provide the equipment in brand new condition and in proper working order and that it had an obligation to fix any and all failures due to malfunctioning parts and/or equipment and keep an appropriate supply level of parts. They allege that Nortrax breached these obligations.

[52] Above, I have outlined the gist of Ryan Bignucolo’s evidence on the summary judgment motion on these issues. In response, the respondent disputed his evidence. The respondent’s evidence was that all of the leased equipment was new and in good working order at the time of delivery and that Nortrax and the respondent sought to accommodate Northern Haul’s parts’ requirements in a timely and commercially reasonable fashion.

[53] Because the exclusion clauses apply, whether or not the leased equipment was in new and good working order at the time of delivery and whether Nortrax and the respondent sought to accommodate Northern Haul’s parts’ requirements in a timely and commercially reasonable fashion were not issues on the summary judgment motion. The motion judge made no findings on these issues. They will be issues at the trial of the counterclaim.

[54] Conversely, the applicability of the exclusion clauses will not be an issue at the trial of the counterclaim. In post-hearing written submissions, the respondent and Nortrax have both confirmed that neither of them takes the position that the appellants’ counterclaim is barred by s. 27 of the Leases. Additionally, Nortrax has confirmed that it does not rely on s. 15 or s. 31 of the Leases.

[55] The appellants plead, as a defence, that they are entitled to set off any damages Northern Haul suffered due to the malfunctioning equipment against any amounts owed to the respondent. The motion judge concluded that in these circumstances the possibility of a set-off once the counterclaim is resolved does not raise the possibility of inconsistent decisions. I agree with him that in these circumstances the pleaded defence of set-off does not raise the possibility of inconsistent verdicts.

[56] This case is distinguishable from Canaccord Genuity Corp. v. Pilot, 2015 ONCA 716, 391 D.L.R. (4th) 736, on which the appellants rely. On the facts of that case, this court found that dismissing a defence of equitable set-off while sending the counterclaim on for trial risked inconsistent verdicts and substantial injustice. Moreover, Canaccord did not involve the application of exclusion clauses. While not addressed by the motion judge, s. 27 of the Leases may well bar the appellants’ pleaded defence of set-off.

No jurisdiction to hear a cross-appeal of a stay of execution

[57] I reject the respondent’s argument that s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. 43 provides this court with jurisdiction to hear and determine its cross-appeal of the motion judge’s stay of execution of the judgment against the appellants.

[58] The respondent acknowledges that a stay of execution is an interlocutory order: Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 28 C.P.C. (4th) 16 (Ont. C.A.). An appeal of an interlocutory order lies to the Divisional Court, with leave: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1).

[59] Section 6(2) of the Courts of Justice Act provides this court with jurisdiction to hear and determine an appeal that lies to the Divisional Court if an appeal lies to and is taken to this court. However, since the respondent did not obtain leave to appeal the stay of execution to the Divisional Court, no relevant appeal lies to that court and, therefore, this court does not have jurisdiction under s. 6(2): Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53, 330 O.A.C. 142, at para. 17.

Disposition and costs

[60] I would dismiss the appeal and quash the cross-appeal on the basis of lack of jurisdiction. I would award costs of the appeal to the respondent in the agreed upon amount of $20,000, inclusive of HST and disbursements.

Released: “AH” “NOV 08 2016”

“Alexandra Hoy A.C.J.O.”

“I agree P. Lauwers J.A.”

“I agree M.L. Benotto J.A.”