COURT OF APPEAL FOR ONTARIO

CITATION: Rana v. Unifund Assurance Company, 2016 ONCA 906

DATE: 20161129

DOCKET: M46544, M46974, M46942, C61998

Pepall, Hourigan and Huscroft JJ.A.

BETWEEN

Kris Rana

Appellant

(Responding Party)

and

Unifund Assurance Company

Respondent

(Moving Party)

Kris Rana, acting in person

Christina M. Martin, for the moving party

Heard: November 17, 2016

ENDORSEMENT

[1] There are three matters before us:

(1) the moving party Unifund Assurance Company’s motion to quash the appellant Kris Rana’s appeal from the April 7, 2016 order of Dunphy J. (M46544);

(2) the appellant’s cross-motion (M46974); and

(3) the appellant’s appeal from the April 7, 2016 order of Dunphy J. (C61998).

[2] The appellant also had brought a motion to review the October 10, 2016 order of Juriansz J.A. (M46942), however that motion was not on the court list for hearing. Without objection from either party, we therefore adjourned that motion to a date to be fixed.

[3] The moving party, Unifund Assurance Company, moves to quash the appellant’s appeal of the January 5, 2016 order of Dow J. and the April 7, 2016 order of Dunphy J.

[4] In the January 5, 2016 order, Dow J. adjourned the trial of this action to January 30, 2017; ordered costs thrown away of $3,729 payable by the appellant within 45 days or by February 29, 2016; and ordered her to execute certain medical record authorizations.

[5] Dunphy J.’s April 7, 2016 order dismissed the appellant’s motion to set aside or vary Dow J.’s January 5, 2016 order requiring her to pay costs thrown away and ordered her to pay costs of $4,500 within 30 days. He determined that the record before him did not justify intervention pursuant to r. 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and that the Human Rights Code, R.S.O. 1990, c. H.19 was inapplicable.

[6] Counsel for the moving party wrote to the appellant on May 2, 2016, confirming that it appeared she was appealing from Dow J.’s January 5, 2016 order and Dunphy J.’s April 7, 2016 order, both interlocutory orders for which the appeal route was to the Divisional Court. Counsel advised of the moving party’s intention to bring a motion to quash the appellant’s appeal for lack of jurisdiction.

[7] The appellant responded that she was not appealing Dow J.’s January 5, 2016 order. Before us, the appellant reiterated this fact.

[8] The appellant brought a motion for leave to appeal Dunphy J.’s April 7, 2016 order in the Divisional Court. On August 16, 2016, Nordheimer J. dismissed the appellant’s motion for leave to appeal to the Divisional Court.

[9] An appeal lies to the Divisional Court from an interlocutory order of a judge of the Superior Court with leave: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b).

[10] Both the January 5, 2016 order of Dow J. and the April 7, 2016 order of Dunphy J. are interlocutory orders. Neither order finally disposed of the rights of the parties nor any claim or defence raised: see Hendricksen v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.) and Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). As such, an appeal does not lie to this court and this court does not have jurisdiction.

[11] In the circumstances, the moving party’s motion is granted and the appeal from Dunphy J.’s April 7, 2016 order is quashed. In any event, given Nordheimer J.’s order, the appeal before this court is moot. To the extent any appeal was taken from Dow J.’s January 5, 2016 order, it too is quashed. It follows that the appellant’s cross-motion is dismissed.

[12] The appellant is to pay the moving party’s costs of the motion to quash and the appeal fixed in the amounts of $3,500 and $3,500 respectively, both inclusive of disbursements and tax and payable within 30 days.

[13] The motion to review the October 10, 2016 order of Juriansz J.A. is adjourned to a date to be fixed by the Registrar. Costs of today’s attendance relating to that motion are reserved to the panel hearing the motion.

[14] The moving party shall take out the order consistent with the terms of this endorsement. Approval of the form and contents of the order by the appellant is dispensed with. The moving party is to send a copy of the issued and entered order to the appellant at her last known address.

“S.E. Pepall J.A.”

“C.W. Hourigan J.A.”

“Grant Huscroft J.A.”