Court of Appeal for Ontario

Date: 2019-03-26 Docket: M50102 (C66240)

Judges: van Rensburg, Benotto and Harvison Young JJ.A.

Between

Appellants (Plaintiffs): Matthew Robert Quenneville, Luciano Tauro, Michael Joseph Pare, Therese H. Gadoury, Amy Fitzgerald, Renee James, Al-Noor WissanJi, Jack Mastromattei, Jay MacDonald and Judith Anne Beckett

and

Respondents (Defendants): Robert Bosch GMBH and Robert Bosch LLC

Counsel

Ilan Ishai, for the moving parties (non-party respondents) Volkswagen entities

Kirk M. Baert and James Sayce, for the plaintiffs/appellants

Heard and released orally: March 15, 2019

Reasons for Decision

[1] This is a motion to quash the appeal from an order dismissing a motion for production under r. 30.10(1), without prejudice to the plaintiffs' bringing the motion back later. The moving party, Volkswagen, claims the order is interlocutory and the appeal lies to the Divisional Court with leave. The responding parties, the appellants, submit that the dismissal of a motion under r. 30.10(1) is final and the appeal lies to this court.

[2] The appellants rely on jurisprudence from this court as authority for the proposition that any order from a r. 30.10(1) motion is final. They also submit that the addition of the words by the motion judge "without prejudice" do not change the character of the order because all such orders can be brought back to the court. Further, the appellants say that the appeal route is determined by the order not the reasons. They add that, even if the reasons are considered, they disclose a final determination of certain issues.

[3] We do not agree.

[4] First, the authorities relied on by the appellants are situations where the issue was in fact finally disposed of between the plaintiffs and the third parties. We need not determine whether these cases have been superseded by subsequent jurisprudence.

[5] Second, the reasoning of the motion judge is relevant to whether the order is final or interlocutory: see Ambrose v. Zuppardi, 2013 ONCA 768, 368 D.L.R. (4th) 749, at para. 19.

[6] Finally, we disagree with the appellants that the reasons disclose a final determination, see paras. 52 and 53 of the motion judge's reasons. The order appealed from here does not finally dispose of any issue between the plaintiffs and the non-parties. It is therefore interlocutory.

[7] The motion is granted and the appeal is quashed. Costs are payable to the moving party in the amount of $9,000 inclusive of disbursements and applicable taxes.

K. van Rensburg J.A.

M.L. Benotto J.A.

A. Harvison Young J.A.