Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210917 DOCKET: M52551 (C69419)

Benotto, Brown and Harvison Young JJ.A.

BETWEEN

Jack Pinder, Victor Dusik and Innotech Safety Solutions Inc. Creditors (Respondents/Moving Parties)

and

Wayne Biggar Debtor (Appellant/Responding Party)

and

Hospodar Davies & Goold Garnishee (Respondent/Responding Party)

Counsel: Stephen Barbier and Ben Tustain, for the moving parties Douglas Spiller, for the responding party Wayne Biggar John Davies, for the responding party Hospodar Davies & Goold [1]

Heard: September 8, 2021 by video conference

Reasons for Decision

[1] The respondents, Jack Pinder, Victor Dusik and Innotech Safety Solutions Inc., move to quash the appeal brought by the appellant, Wayne Biggar, from the order made by Skarica J. dated April 13, 2021 following a garnishment hearing (the “Order”) on the basis that the Order is interlocutory, not final.

[2] For the reasons that follow, we conclude that the Order is interlocutory in nature and quash Mr. Biggar’s appeal.

[3] By way of background, in 2018 Mr. Biggar commenced an oppression action against the respondents, in which he obtained an interlocutory injunction and orders to produce information. Mr. Biggar later alleged that the respondents failed to comply with the production order and he moved for contempt. The respondents brought a cross-motion to dissolve the injunction. By order dated June 5, 2019 Perell J. dismissed Mr. Biggar’s contempt motion and dissolved the injunction. He ordered costs against Mr. Biggar.

[4] Mr. Biggar sought to appeal the order of Perell J., first to this court and then to the Divisional Court. By the time all the appellate dust had settled, the order of Perell J. was left standing, undisturbed, and Mr. Biggar had been ordered to pay the respondents’ costs totalling $128,500 ($110,000 by Perell J.; $7,500 by this court; and $11,000 by the Divisional Court).

[5] Mr. Biggar has exhausted his rights of appeal in respect of the order of Perell J., the cost order of this court, and that of the Divisional Court.

[6] Mr. Biggar’s oppression action remains outstanding, with no final determination having been made.

[7] The respondents sought to enforce the cost orders totalling $128,500 by garnishing part of the proceeds of the sale of Mr. Biggar’s matrimonial home, which were being held in trust by a law firm pending the determination of the matrimonial litigation between Mr. Biggar and his wife. At the request of Mr. Biggar, the motion judge held a garnishment hearing.

[8] As the motion judge noted in his oral reasons for the Order, Mr. Biggar’s wife did not oppose the respondents’ effort to garnish as she was satisfied that sufficient funds would remain in trust to satisfy the claims she is asserting against Mr. Biggar in their matrimonial litigation. The motion judge relied on the statements made by Ms. Biggar at para. 18 of her affidavit of December 11, 2020 where she deposed:

I was aware that I could oppose the garnishment but based upon the amount being sought under the garnishment I instructed my solicitors not to oppose as I felt there would be sufficient funds remaining to address issues of equalization and costs in the matrimonial proceedings.

[9] Following a garnishment hearing, the motion judge ordered $128,500 to be paid from the trust funds to the respondents in satisfaction of Mr. Biggar’s cost obligations to them. In addition, he ordered $5,600 to be paid for accrued postjudgment interest on the cost awards.

[10] Mr. Biggar has appealed the Order to this court, contending that it is a final order. The respondents move to quash the appeal on the basis that the Order is interlocutory. Mr. Biggar’s wife did not oppose the Order and she is not a party to Mr. Biggar’s appeal. The garnishee takes no position on this motion.

[11] The Order is an interlocutory one. It was made within the oppression action Mr. Biggar commenced, not within the matrimonial litigation. The Order did not finally dispose of the rights of the parties in the oppression action, including any right to substantive relief sought by Mr. Biggar: Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), at p. 680; Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 116 O.A.C. 103 (C.A.), at para. 13. Nor did it finally dispose of an issue raised by a defence in the oppression action, as Mr. Biggar is the plaintiff: Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.). Nor does the Order end a discrete proceeding before the court, as the garnishment hearing was simply a step in the process to enforce cost orders made in the oppression action: Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97 (C.A.).

[12] The legal effect of the Order that Mr. Biggar seeks to appeal is interlocutory in nature: the Order was made in furtherance of the respondents’ efforts to enforce cost awards made against Mr. Biggar in the oppression action and in respect of which Mr. Biggar has exhausted his rights of appeal.

[13] Accordingly, this court has no jurisdiction to hear an appeal from the Order: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b) (“CJA”). Mr. Biggar’s appeal is quashed. Any avenue of appeal that Mr. Biggar may have left in respect of the Order lies to the Divisional Court pursuant to CJA s. 19(1)(b) and must be considered by that court.

[14] If the parties are unable to agree upon the costs of this motion to quash and the motion to extend, they may deliver written cost submissions, not exceeding three pages in length (excluding any Bill of Costs), within 10 days of the date of these reasons.

“M.L. Benotto J.A.”

“David Brown J.A.”

“Harvison Young J.A.”

[1] John Davies appeared but made no written or oral submissions on behalf of the responding party Hospodar Davies & Goold.