Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211123 DOCKET: C69166

Gillese, Trotter and Nordheimer JJ.A.

BETWEEN

1386444 Ontario Inc. and Surinder Singh Binepal Applicants (Respondents)

and

2331738 Ontario Ltd. operating as Century Cabinet Doors Inc., Harpal Singh Bhambra, Amanpreet Kaur Bhamra, and Peel Condominium Corporation No. 473 Respondents (Appellants)

Counsel: Ajay Duggal and Maneesh Mehta, for the appellants James S. G. Macdonald and Melisa Rupoli, for the respondents

Heard: November 19, 2021

On appeal from the judgments of Justice Heather A. McGee of the Superior Court of Justice, dated October 21, 2020, and February 22, 2021.

APPEAL BOOK ENDORSEMENT

[1] The appellants seek to appeal two judgments made in this proceeding. The first judgment, dated October 21, 2020, declared that the Appellants’ operation of their cabinet door manufacturing business constituted a significant and unreasonable nuisance that interfered with the Respondent’s use and enjoyment of their condominium (the “October 2020 Judgment”). In the second judgment, dated February 22, 2021 (the “February 2021 Judgment”), the court granted a permanent injunction restraining the Appellants from operating any noise causing machinery in their condominiums between 9 a.m. and 5 p.m., Monday through Friday excluding statutory holidays.

[2] This court does not have jurisdiction to hear that part of the appeal in which the Appellants challenge the October 2020 Judgment because of the Appellants’ prior actions in respect of that judgment. The Appellants filed an appeal of the October 2020 Judgment on November 2, 2020 (the “First Appeal”). The First Appeal was dismissed for delay by order of the Registrar of this court dated January 20th, 2021 (the “Dismissal Order”). At the oral hearing of this appeal, the Appellants advised that, in fact, they abandoned the First Appeal shortly before the Dismissal Order was made. Be that as it may, the Appellants’ First Appeal has been dismissed and, consequently, this court does not have jurisdiction to adjudicate upon it again. To permit the Appellants, without more, to challenge the October 2020 Judgment through this appeal would be an impermissible collateral attack on that judgment.

[3] However, as the Appellants made clear at the oral hearing of this appeal, they wish to appeal both the October 2020 Judgment and the February 2021 Judgment.

[4] Assuming that the Appellants are correct in their submission that this court has the power to set aside the Dismissal Order and/or their earlier abandonment, the court declines to exercise that power. The Rules of Civil Procedure set out a process that is to be followed should a party wish to set aside a dismissal order. That process is designed to ensure fairness to both sides of this dispute. Further, such a process must be followed so that the court can fairly hear and decide whether to set aside the Dismissal Order.

[5] Consequently, as we declared at the oral hearing of this appeal, this appeal is adjourned to a date to be fixed by the court’s Appeal Scheduling Unit, such date to be no earlier than 60 days from the date of this endorsement. The 60-day period gives the Appellants the opportunity to bring a motion to set aside the Dismissal Order, should they so decide. Regardless of whether the Appellants make such a motion and, if they do, regardless of whether they are successful on that motion, the appeal shall be rescheduled because that part of it which relates to the February 2021 Judgment remains to be decided.

[6] Costs thrown away today are awarded to the Respondents, fixed at $1,600, all inclusive.