Court of Appeal for Ontario

Date: 2017-05-19 Docket: C62516 Judges: Lauwers, Hourigan and Benotto JJ.A.

Parties

Between

James Cowan and Shauna Cowan Plaintiffs (Respondents)

and

General Filters Inc., Canadian General Filters Limited, Lippert & Wright Fuels Ltd., also known as Dave Lippert Fuels Ltd, K & S Climate Control, Oil Tech Plus Ltd., and John Doe Company, and The Dominion of Canada General Insurance Company Defendants/Third Party Plaintiff (Respondents)

and

Dana Canada Inc. Filter Division Third Party Defendant (Appellant)

Counsel

For the Appellant: Christopher A. Chekan

For the Plaintiffs/Respondents: Edward Key and Richard K. MacGregor

Hearing and Appeal

Heard and Released Orally: May 19, 2017

On Appeal From: The order of Justice James Sloan of the Superior Court of Justice, dated July 26, 2016.

Reasons for Decision

[1] The motion judge granted the plaintiffs' motion to quash four subpoenas addressed to the following individuals: Rene Caskanette, Bob Caskanette, Peter Johnston, and Alfred Burgess.

[2] The evidence sought by the appellant from these witnesses was in aid of the appellant's efforts to have the administrative dismissal of this action maintained.

[3] The motion judge asked the question before him in the following terms:

What evidence would any of the witnesses have, that by the passage of time from the dismissal of the action (March 24, 2016) or the set down date of December 31, 2015 to the service of the motion to reinstate (April 8, 2016), would assist Dana Canada in demonstrating that there is now significant prejudice to them in presenting their case to trial.

[4] He answered this question in the following terms:

I therefore find it extremely unlikely that the Caskanette engineers would be able to provide Dana Canada with any evidence whatsoever that would assist them in showing significant prejudice.

[5] The jurisdictional question before us is whether the order quashing the subpoenas was interlocutory or final. Based on the authority of this court in Ambrose v. Zuppardi, 2013 ONCA 768, 368 D.L.R. (4th) 749, we conclude that the order was interlocutory, not final and that the route of appeal is through the Divisional Court with leave under the Courts of Justice Act, R.S.O 1990, c. C.43.

[6] We therefore quash the appeal.

[7] Costs are fixed in the amount of $7,500 all inclusive, payable to the respondents.

P. Lauwers J.A. C.W. Hourigan J.A. M.L. Benotto J.A.