Court of Appeal for Ontario

Date: 20211015 Docket: M52846 (C69611) Before: Brown J.A. (Motion Judge)

Between: 1476335 Ontario Inc., Aldo Rotondi, D'Andrea Management Inc. and Rick D'Andrea Plaintiffs (Moving Parties/Appellants)

And: Brenda Frezza, Onorio Frezza, Elio Ascenzo Frezza, Jane Frezza and Frezza Management Inc. Defendants (Responding Parties/Respondents)

Counsel: Anthony J. Gabriele, for the moving parties Jennifer McLeod, for the responding party, Brenda Frezza No one appearing for the responding parties, Onorio Frezza, Elio Ascenzo Frezza, and Jane Frezza

Heard: October 14, 2021 by video conference

Endorsement

[1] In 2019 the moving parties, 1476335 Ontario Inc., Aldo Rotondi, D'Andrea Management Inc. and Rick D'Andrea, commenced an action that seeks, inter alia, declarations that the 2003 transfer of what are now two Bonnie Doon Road properties (the “Properties”) to the respondent, Brenda Frezza, was a fraudulent conveyance and that Ms. Frezza holds the former transferor’s interest in the Properties on a constructive trust for the moving parties. The action also seeks an order for the issuance of a certificate of pending litigation (“CPL”) for registration against the Properties.

[2] By order dated May 28, 2021, Aston J. dismissed the moving parties’ motion for a CPL (the “Order”).

[3] The moving parties have appealed the Order to two different courts.

[4] On the one hand, they have commenced a motion for leave to appeal the Order to the Divisional Court. At the same time, they filed a notice of appeal with this court. The Divisional Court has put the leave motion on hold until this court determines whether the Order is final or interlocutory.

[5] In this court the moving parties have brought two motions. The first seeks, in effect, a determination that the Order is final in nature and, therefore, an appeal lies to this court (the “Jurisdiction Motion”). The Jurisdiction Motion is scheduled to be heard at a later date (December 10, 2021) by a panel.

[6] In the meantime, the moving parties have brought this motion before a single judge seeking, pursuant to s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, an “interim order” granting them leave to issue and register a CPL against the Properties.

[7] The respondent seeks an adjournment of this motion on the basis that the motion materials were not served on it in a timely manner.

[8] I need not address the merits of that request because I have determined that I must adjourn the motion in any event to the panel hearing the Jurisdiction Motion.

[9] Section 134(2) of the Courts of Justice Act states: “On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal” (emphasis added). As I interpret this section, it authorizes an appellate court to make an interim order where an appeal lies to that court. Since the powers of this court derive from statute, I have strong reservations that I possess the power to make an order under s. 134(2) where there is a dispute as to whether this court has jurisdiction to entertain an appeal from the Order. Were I to entertain the moving parties’ request for the issuance of a CPL, I would impliedly be determining the very question that will be before the panel: namely, whether the Order is final in nature and an appeal properly lies to this court. I am not prepared to determine, in effect, the very question the moving parties have placed before a panel.

[10] At the same time, there is no doubt that Ms. Frezza is actively trying to sell the two Properties. While I do not think that I have the jurisdiction to make an order restraining her given the outstanding final/interlocutory issue, as a practical matter I think the interests of both parties can be fairly balanced by advancing the date for the hearing of the Jurisdiction Motion and adjourning this motion to be heard at the same time as the Jurisdiction Motion.

[11] A panel is available on November 5, 2021 to hear both motions. Accordingly, I adjourn this motion to that date and direct that the Jurisdiction Motion be rescheduled for hearing on November 5 together with this motion. That date is peremptory to both parties. A total of 30 minutes is allocated for oral argument on the combined motions – i.e., 15 minutes for each party.

[12] I make the following directions regarding the materials for this adjourned motion and the Jurisdiction Motion to be heard on November 5, 2021: (i) The respondents shall serve and file all responding materials for both motions, including factums and books of authorities, no later than Wednesday, October 27, 2021; and (ii) The moving parties shall serve and file any reply materials for both motions no later than Monday, November 1, 2021.

[13] Evidently the date for the perfection of this appeal expires on October 15, 2021. I hereby extend the date for perfection until the disposition of both motions by the panel or such further date as may be set by the court.

[14] The costs of today’s attendance are fixed in the amount of $250, inclusive of disbursements and applicable taxes, with the determination of who pays whom left to the panel on November 5, 2021.

[15] I conclude by observing that one of the great on-going failures of the Ontario civil justice system is the confusion entrenched in the Courts of Justice Act, R.S.O. 1990, c. C.43 concerning appeal routes from orders made by judges of the Superior Court of Justice: Does the appeal lie with leave to the Divisional Court or as of right to this court? Such confusion inflicts unnecessary legal costs on parties, delays the resolution of appeals on their merits and, as this case illustrates, sows uncertainty about how a party can attempt to protect its rights pending an appeal.

[16] There is absolutely no excuse for such confusion to continue. Simple “bright line” appeal route solutions are available. I would hope that at some point in the near future the Ontario Legislature will awake and address this far-too-long-outstanding stain on our civil justice system. In my respectful view, the Legislature needs to enact legislation that creates an unambiguous “bright line” explaining when an appeal lies to the Divisional Court and when it lies to the Court of Appeal for Ontario. The current final/interlocutory dividing line is an expensive, time-wasting anachronism. Implementing a “bright line” solution is not a hard task: all it needs is a bit of creativity, political will, and concern for the health of our ailing civil justice system.

“David Brown J.A.”