1947755 Ontario Ltd. v. Caruso et al.

[Indexed as: 1947755 Ontario Ltd. v. Caruso]

Ontario Reports

Court of Appeal for Ontario

Juriansz, Hourigan and Thorburn JJ.A.

September 30, 2020

152 O.R. (3d) 787 | 2020 ONCA 616

Case Summary

Appeal — Jurisdiction — Final or interlocutory order — Appellant obtaining order to set aside default judgment, but order subject to terms and appellant ordered to pay costs — Appellant seeking to set aside terms and respondent moving to quash appeal — Motion granted — Terms were not final orders and award of costs made in relation to interlocutory orders, so no appeal available to Court of Appeal.

Civil procedure — Appeal — Motion to quash — Appellant obtaining order to set aside default judgment, but order subject to terms and appellant ordered to pay costs — Appellant seeking to set aside terms and respondent moving to quash appeal — Motion granted — Terms were not final orders and award of costs made in relation to interlocutory orders, so no appeal available to Court of Appeal.

The respondent obtained a default judgment against the appellant. The appellant successfully moved to set aside the default judgment, but the order included a term requiring the appellant to pay $52,000 into court to the credit of the action. Upon his failure to make the payment by a specified date, the respondent would be allowed to bring a motion to strike his defence, note him in default and move for default judgment. The appellant was also ordered to pay costs. The appellant appealed those three terms of the order. The respondent moved to quash the appeal. [page788]

Held, the motion should be granted.

The term requiring payment into court did not dispose of a dispute between the parties. The second term might result in a default judgment against the appellant, but that would have been a result of his failure to comply rather than the order itself. Those terms were clearly not final orders of a judge of the Superior Court of Justice and so there was no appeal to the Court of Appeal. As the award of costs was made in relation to interlocutory orders, it was also interlocutory and again there was no appeal to the Court of Appeal.

Cases referred to

Destefano v. Gerry, [2018] O.J. No. 4558, 2018 ONCA 701; Inforica Inc. v. CGI Information Systems and Management Consultants Inc. (2009), 97 O.R. (3d) 161, [2009] O.J. No. 3747, 2009 ONCA 642, 80 C.P.C. (6th) 197, 254 O.A.C. 117, 311 D.L.R. (4th) 728, 97 Admin. L.R. (4th) 159

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6 [as am.], (2) [as am.]

MOTION to quash an appeal.

Adam Jarvis, for moving party.

Doug LaFramboise, for responding party.

[1] BY THE COURT: -- This is a motion to quash the appeal of the appellant, Gaspare Caruso. Caruso's Notice of Appeal indicates he seeks to appeal three terms of an order of the Superior Court of Justice dated February 12, 2020 granting his motion to set aside the noting in default and default judgment obtained by the moving party, who is the plaintiff in the action below and respondent to the appeal. Caruso seeks to appeal the terms that he pay $52,000 into court to the credit of the action, and that upon his failure to make the payment into court by April 13, 2020 the plaintiff may bring a motion to strike his defence if one is filed, note him in default and move for default judgment. Caruso also seeks to appeal the costs award made upon disposition of the motion below.

[2] The first term that Caruso wishes to appeal, requiring payment of $52,000 into court, does not dispose of the dispute between the parties but allows that dispute to proceed to trial. It does not finally dispose of a substantive defence of the defendant.

[3] The second term might result in the default judgment against Caruso, but that would be a result of his failure to comply with the first term rather than the order itself. As Sharpe J.A. explained, at para. 26 of Inforica Inc. v. CGI Information Systems and Management Consultants Inc. (2009), 97 O.R. (3d) 161, [2009] O.J. No. 3747, 2009 ONCA 642, [page789]

I recognize that failure to satisfy an order for security for costs may lead to a dismissal of the claim, but the sanction for non-compliance with an order cannot alter the nature of the order itself. Many procedural or interlocutory orders -- for particulars, for production of documents, for the payment of costs ordered in interlocutory proceedings -- may carry the ultimate sanction of dismissal of the non-complying party's claim. But if the claim is dismissed, the dismissal flows from the party's failure to comply with the interlocutory or procedural order, not from the order itself, and does not alter the interlocutory or procedural nature of the order that led to dismissal: see Laurentian Plaza Corp. v. Martin (1992), 1992 CanLII 7561 (ON CA), 7 O.R. (3d) 111 (C.A.).

[4] These terms are clearly not final orders of a judge of the Superior Court of Justice and no appeal lies from them to this court under s. 6 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[5] As the award of costs was made in relation to interlocutory orders, it is also interlocutory: see Destefano v. Gerry, [2018] O.J. No. 4558, 2018 ONCA 701, at para. 4. No appeal lies to this court from the costs awarded on the motion.

[6] Counsel for Caruso sought to invoke s. 6(2) of the Courts of Justice Act but did not identify any appeal in the same proceeding that has been taken to this court. In any event, this would not be a case for the application of s. 6(2).

[7] The appeal is quashed. Costs in favour of the moving party are fixed in the amount of $6,500 inclusive of disbursements and applicable taxes.

Motion granted.

End of Document