Court of Appeal for Ontario
Date: November 26, 2019
Docket: M50847 (C67302)
Judges: van Rensburg, Paciocco and Thorburn JJ.A.
Between
Amphenol Canada Corp. Plaintiff (Respondent/Moving Party)
and
Nandakumar Sundaram, a.k.a. Kumar Sundaram, Chandra Devappa, Sundev Technologies Inc., MTech Ltd., John Doe, Jane Doe, and other persons unknown who have conspired with the named Defendants Defendants (Appellants/Responding Parties)
Counsel
Brendan Wong, for the moving party Amphenol Canada Corp.
Nikolay Y. Chsherbinin, for the responding parties Nandakumar Sundaram, a.k.a. Kumar Sundaram and Sundev Technologies Inc.
Heard: November 20, 2019
Reasons for Decision
Overview
[1] The appellants, Nandakumar Sundaram (a.k.a. Kumar Sundaram) and Sundev Technologies Inc. ("the appellants") have brought an appeal of an order before this court. The order in question was an order quashing a motion to set aside prior orders granting a Mareva injunction, certificates of pending litigation, and Norwich orders ("the Quash Order").
[2] The appellants argue that this court has jurisdiction to hear the appeal from the Quash Order because the motion judge's order is final, and unless they are entitled to appeal the order, they will be forever precluded from being heard on the issue of the granting of a Mareva injunction and the finding that there was a prima facie case of fraud against them.
[3] The moving party/respondent, Amphenol Canada Corp. ("Amphenol"), claims there is no right to appeal an interlocutory order to the Court of Appeal and any appeal of the Quash Order must be to the Divisional Court pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Amphenol therefore claims its motion to quash the appeal should be granted.
[4] After hearing argument on the motion, we quashed the appeal, with reasons to follow. These are our reasons.
Background
[5] The underlying action is a claim brought by Amphenol against Nandakumar Sundaram, a.k.a. Kumar Sundaram, Chandra Devappa, Sundev Technologies Inc., MTech Ltd., John Doe, Jane Doe, and other persons unknown who have conspired with the named defendants. Amphenol claims the defendants perpetrated a fraud against them.
[6] On January 15, 2019, before serving the Statement of Claim, Amphenol obtained an ex parte order from Akbarali J. against the appellants (the "Initial Order"). The Initial Order included a Mareva injunction to freeze the assets of the appellants, certificates of pending litigation against properties owned by some of the appellants, and Norwich orders.
[7] After issuing the Statement of Claim, Amphenol sought an order to continue the injunctive relief.
[8] On the return date, the appellants did not file affidavit evidence, nor did they oppose the continuation of the Initial Order, which was opposed only by the defendants Devappa and MTech Ltd.
[9] On February 4, 2019, Faieta J. granted an order continuing the Initial Order against Sundaram, Sundev, and Devappa, but not against MTech Ltd. (This second order is referred to as the "Continuation Order").
[10] On February 15, 2019, the appellants brought a motion to set aside aspects of the Initial Order and the Continuation Order (the "Set Aside Motion"). Among other things, they took the position that they were entitled to bring the Set Aside Motion after having the opportunity to file materials and conduct cross-examinations. They claimed this entitlement notwithstanding that they had not participated in the motion leading to the Continuation Order. They said it is in keeping with the Initial Order, which provided that they "may apply to the Court at any time to vary or discharge this Order".
[11] In response, Amphenol brought a motion to quash the Set Aside Motion. On July 15, 2019, Faieta J. quashed the Set Aside Motion on the grounds that the matter was res judicata and an abuse of process (the "Quash Order").
[12] In his reasons, Faieta J. held that:
[A]ll of the conditions for establishing issue estoppel have been satisfied. The same question raised by the Set Aside Motion, namely whether there is a strong prima facie case against Sundaram and Sundev and thus whether the initial Order should continue against them, was determined at the Continuation Motion. The Continuation Order is final.
[13] On August 12, 2019, the appellants filed a Notice of Appeal, seeking leave to appeal the Quash Order.
[14] On September 25, 2019, Amphenol brought a motion to quash the appeal on the basis that this court lacks jurisdiction.
The Issue
[15] The issue on this motion is whether the Quash Order is an interlocutory order requiring an appeal to the Divisional Court pursuant to s. 19(1)(b) of the Courts of Justice Act, or whether it is a final order properly appealed to this court.
Analysis and Conclusion
[16] We disagree with the appellants' assertion that the Quash Order was final because they were never given the opportunity to be heard on the Mareva injunction and, unless they appeal to this Court, they will be forever precluded from a challenge on the merits and will be permanently deprived of a substantive right.
[17] As noted by counsel for Amphenol, the Quash Order did not finally determine the real matter in dispute, that is, whether the appellants committed fraud. The Initial Order, Continuation Order, and Quash Order were all interlocutory decisions, which specifically related to a Mareva injunction, certificates of pending litigation, and Norwich orders.
[18] Interlocutory orders do not determine the "real matter in dispute between the parties – the very subject matter of the litigation, but only a collateral issue. The orders may be final in the sense that they determine the very question raised by the applications, but they are interlocutory if the merits of the case remain to be determined": Hendrickson v. Kallio, [1932] O.R. 675, at p. 4.
[19] The characterization of an order depends on its legal nature not its practical effect. Accordingly, although the practical effect of quashing a motion to set aside an interlocutory injunction may effectively end some part of the litigation, the legal nature of such an order remains interlocutory for the purposes of appeal: Ontario Medical Association v. Miller (1976), 14 O.R. (2d) 468 (C.A.).
[20] In this case, while there was no opportunity pending trial to set aside the order to continue the Mareva injunction, certificates of pending litigation, and Norwich Orders pending trial, that does not finally dispose of whether fraud was perpetrated on Amphenol. While we note that Faieta J. accepted that Amphenol satisfied him that there was a prima facie case of fraud, that issue was not finally disposed of.
[21] Moreover, the law is clear that an appeal lies from the order, not the reasons for granting the order: Grand River Enterprises v. Burnham (2005), 197 O.A.C. 168 (C.A.), at para. 10. As such, the appeal is not from the reasons of Faieta J., in which he held that he accepted there was a prima facie case of fraud.
[22] This is not a case like Meisels v. Lawyers Professional Indemnity Company, 2015 ONCA 406, 126 O.R. (3d) 448, where the appellant's claim was held to be a nullity. Nor is this a case like Ball v. Donais, (1993), 13 O.R. (3d) 322 (C.A.), which involved an appeal from an order determining that an action was not statute-barred. Denying an appeal from that order would have denied the defendant's right to raise the defence that the plaintiff failed to sue within the limitation period. In that case, the order was final in the sense that it was determinative of the entire action.
[23] Unlike those cases, the Mareva injunction, certificates of pending litigation, and Norwich orders are imposed pending a determination of the issues at trial. They do not finally determine the essence of the dispute, which is the allegation of fraud. As such, they are interlocutory not final orders.
[24] Interlocutory orders of a single judge of the Superior Court of Justice, such as these, must be appealed with leave to the Divisional Court pursuant to s. 19(1)(b) of the Courts of Justice Act.
[25] For these reasons, the motion to quash appeal is granted without prejudice to the appellants' right to seek leave to appeal to the Divisional Court.
[26] Costs payable to the moving party, Amphenol, in the amount of $2,500 all-inclusive, as agreed by the parties.
"K. van Rensburg J.A."
"David M. Paciocco J.A."
"J.A. Thorburn J.A."