Court of Appeal for Ontario

Date: 2021-03-25 Docket: M52058 (C68821)

Before: Lauwers, Trotter and Zarnett JJ.A.

Between:

Ishver Lad and Sumitra Lad Plaintiffs (Respondents/Moving Parties)

And:

Manny Marcos, also known as Manuel Marcos also known as Manuel Martins Marcos also known as Manny Martins Marcos also known as Manuel M. Marcos, Joe Marcos, also known as Joe Luis Marcos also known as Jose Luis Marcos also known as Jose Marcos, Arlete Susana Marcos, Catarina Arruda Marcos and Marcos Limited Building Design Consultants Defendants (Appellants/Responding Parties)

Counsel: Dora Konomi and Timothy M. Morgan, for the moving parties Ted Evangelidis, for the responding parties Joe Marcos, Arlete Susana Marcos, and Catarina Arruda Marcos Gregory Hemsworth, for the responding parties Manny Marcos and Marcos Limited Building Design Consultants

Heard: March 18, 2021 by video conference

Reasons for Decision

[1] This is yet another motion to quash an appeal on the basis that the order under appeal is interlocutory, not final, and not properly before this court. The principles governing this issue were recently laid out in Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16.

[2] The motion judge described the motion before him in these terms:

Joe Marcos, Arlete Marcos and Catarina Marcos, and separately, Manny Marcos, seek an order striking out the Plaintiffs' claims for declaratory relief set out in paragraphs 1(a) and (b) of the Fresh as Amended Statement of Claim issued June 10, 2019, together with the consequential and ancillary relief set out in paragraphs 1(c) - (f), without leave to amend. The effect of this relief, if granted, would end the Plaintiffs’ claim.

In the alternative, the defendants seek a determination under r. 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 that the plaintiffs cannot seek and are not entitled to the declaratory relief sought in paragraphs 1(a) and (b) of the Fresh as Amended Statement of Claim, and therefore are not entitled to the ancillary and consequential relief arising therefrom sought in paragraphs 1 (c) - (f).

[3] The nub of the motion judge’s decision is this:

For the reasons that follow, the motion is dismissed. In reaching this result, I make no comment of the viability of the causes of action either as pleaded, or as determined on a full record, or with respect to the eloquence with which they are pleaded. I merely hold a) that it is not plain and obvious that the causes of action have no merit, and b) they are properly pleaded.

[4] The responding parties argue that because the motion was brought under r. 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the motion judge’s decision perforce was a final determination of a legal question. They cite Atlas Holdings v. Vratsidas, 2012 ONSC 1375, at para. 12. But that case turned on a determination that finally disposed of a question of law, being whether the limitations defence was available to the defendants. The Superior Court had found that it was not available, and this court had agreed. Brown J., as he then was, then said, at para. 18, “having lost on the question of law as to whether the plaintiffs' claims were statute-barred, the defendants cannot now rely on a limitation period defence.”

[5] The law is clear that not every unsuccessful motion under r. 21.01(1)(a) automatically gives rise to a right of appeal, only those that “finally dispose of the issue raised by that defence, and thereby [deprive] the defendant of a substantive right which could be determinative of the entire action": Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.).

[6] The order the moving parties seek to appeal did not finally determine any issues between the parties; the issues were all left to the trial judge. It is quintessentially an interlocutory order over which only the Divisional Court has jurisdiction under s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[7] This conclusion is so obvious that this attempted appeal can be described as no more than an effort to buy time, part of what the motion judge, in his costs endorsement, termed the defendants’ “Carthaginian litigation strategy”. We agree with the moving parties that they are entitled to substantial indemnity costs and fix them in the amount of $10,000 inclusive of disbursements and taxes, payable by the responding parties forthwith.

“P. Lauwers J.A.”

“Gary Trotter J.A.”

“B. Zarnett J.A.”