Court of Appeal for Ontario

Date: 2017-03-08 Docket: M47459 (C63108)

Panel: Hoy A.C.J.O., Gillese and Brown JJ.A.

Between

Density Group Limited Respondent (Moving Party)

and

HK Hotels LLC and Henry Kallan, Princess Gates G.P. Inc. and Princess Gates Hotel Limited Partnership Appellants (Responding Parties)

Counsel

David S. Steinberg, for the moving party

David Boghosian, for the responding parties

Heard

March 7, 2017

Endorsement

[1] The parties to this action attended at a 9:30 a.m. Commercial List appointment before Newbould J. on November 18, 2016. The purpose of the attendance was to schedule a motion to finalise a discovery plan in the action. There were two issues on which the parties could not agree, one of which was whether Alexander Rovt should be produced to be examined for discovery on behalf of the defendant, Princess Gates Hotel Limited Partnership. Density Group Limited ("Density") wishes to examine Mr. Rovt. The appellants resist on the basis that he is not a proper representative.

[2] By order dated November 25, 2016 (the "Order"), Newbould J. ordered that Density is entitled to examine Mr. Rovt (and another) in Toronto.

[3] The appellants filed a motion for leave to appeal the Order to the Divisional Court. That motion has yet to be decided. Shortly thereafter, they brought an appeal of the Order to this court, in which they ask that the Order be set aside as it relates to Mr. Rovt.

[4] Density brings this motion to quash the appeal for lack of jurisdiction. It contends that the order is interlocutory and, therefore, the pending motion for leave to appeal that is before the Divisional Court is the proper route of appeal.

[5] The appellants resist the motion to quash on the basis that Mr. Rovt was ordered to be examined as a non-party and the Order, therefore, finally disposes of his right to refuse to attend and be examined.

[6] We do not agree that the Order is made against Mr. Rovt, a non-party. When the Order is considered together with the further order of December 20, 2016, of Newbould J., it is clear that the Order does not obligate Mr. Rovt to appear and be examined. Rather, it requires the appellants, as the defendants to the action, to produce Mr. Rovt for examination. Should Mr. Rovt's examination not take place as ordered, recourse is against the appellants and not against Mr. Rovt.

[7] The Order is interlocutory because it merely decides which individual will be examined for discovery on behalf of a party to the action.

[8] Accordingly, the motion is granted and the appeal is quashed, with costs to Density fixed at $5,000, all inclusive.

"Alexandra Hoy A.C.J.O."

"Eileen E. Gillese J.A."

"David Brown J.A."