COURT OF APPEAL FOR ONTARIO

CITATION: Hordo v. Zweig, 2021 ONCA 893

DATE: 20211215

DOCKET: M52833 (M52455)

Lauwers, Paciocco and Thorburn JJ.A.

BETWEEN

Diana Hordo and Michael Hordo

Plaintiffs/Appellants

(Moving Parties)

and

Arnold H. Zweig

Defendant/Respondent

(Responding Party)

Diana Hordo and Michael Hordo, acting in person

Peter H. Smiley, for the responding party Arnold H. Zweig

Debra Eveleigh, for Lawyer’s Professional Indemnity Company

Ian Sinke, for the Law Society of Ontario

Heard: December 9, 2021

REASONS FOR DECISION

Relief Sought

[1] The moving parties, Diana Hordo and Michael Hordo, seek to set aside or vary the order of Zarnett J.A., dated September 15, 2021, a stay of outstanding costs orders, and other related relief. They also bring notice of a constitutional question for relief based on an alleged breach of the guidelines of the Law Society of Ontario (“LSO”) which they claim is a breach of their constitutional rights. They claim the LSO through its subsidiary, the Lawyers’ Professional Indemnity Company (“LawPro”), insures licensed lawyers and paralegals who commit errors and omissions against their clients and the public which, they claim, contravenes the LSO and LawPro’s duty to protect the public and uphold the law. The appellants seek to put both the LSO and LawPro into receivership.

Progress of this Proceeding

[2] On October 11, 2013, the moving parties commenced an action against the responding party, Arnold H. Zweig.

[3] In November 2018, on the consent of all parties, the moving parties’ lawyer, Robert Besunder, successfully removed himself from the record.

[4] Following Mr. Besunder’s removal as counsel of record, the moving parties alleged that the responding party’s lawyer Mr. Youd and his firm, LawPro, and the LSO had engaged in a conspiracy to remove Mr. Besunder from the record.

[5] The moving parties then sought to have Mr. Youd and his firm removed from the record. The principal basis for the relief sought was the moving parties’ assertion that Youd and his firm, LawPro, and the LSO conspired to have Besunder removed as their lawyer in the Zweig Action.

[6] That motion was dismissed by Associate Justice Muir on November 26, 2019. Muir A.J. held that there was no evidence to support the moving parties’ argument that Mr. Besunder was directed or compelled to remove himself from the record by Mr. Youd, LawPro or anyone else or that there was any evidence of improper conduct.

[7] The moving parties appealed Associate Judge Muir’s decision to the Superior Court and their appeal was dismissed by Glustein J. who also ordered costs against the moving parties.

[8] The moving parties sought to appeal the order of Glustein J.

[9] The Registrar of this court contacted counsel for the responding party Zweig by telephone, to inquire about the seemingly interlocutory nature of the proposed appeal and then refused to accept the moving parties’ documents. The communication between the Registrar and the responding party’s counsel about the interlocutory nature of the appeal was later confirmed in email communications. The email communications were subsequently provided to the moving parties.

[10] The moving parties brought a motion for directions to this court seeking, among other things, that they be permitted to file their appeal, as the Registrar erred in rejecting the filing of their material on the grounds that the decision below was interlocutory.

[11] Fairburn A.C.J.O. dismissed the motion for directions and all other requests for relief brought by the moving parties and ordered that the matter be remitted to Glustein J. She held that the Registrar was correct to reject the filing as, when the Registrar discussed this issue with the responding party’s counsel, there was no proceeding pending before the court: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 1.09. She further held that the overture was made by the court in an effort to understand the jurisdictional issue. As such, the communications were not improper and, as the moving parties were appealing an interlocutory order, this court does not have jurisdiction to hear the appeal. Fairburn A.C.J.O. ordered costs against the moving parties.

[12] The moving parties then sought an order from a panel of this court to set aside or vary Fairburn A.C.J.O.’s order but failed to file their material in time. They therefore sought an order to extend the time to file their materials and other relief, which was heard by Zarnett J.A. sitting as a motions judge. Zarnett J.A. released his order on September 15, 2021.

[13] Rule 61.16(4)(ii) of the Rules provides that a party bringing a motion to more than one judge of an appellate court must file their motion record and factum within 30 days of filing their notice of motion. Rule 3.02(1) of the Rules provides that the court may extend the time prescribed by the Rules on “such terms as are just”. The most important factor in determining whether to grant an extension is whether the justice of the case requires it: D.G. v. A.F., 2014 ONCA 436, at para. 11.

[14] Zarnett J.A. accepted that the moving parties formed the intention to proceed with the review motion within the required time and that, while their explanation for the delay was not entirely satisfactory, some effort was made to meet the filing deadline. However, he concluded that “the justice of the case does not require that an extension of time be granted, because there is no arguable merit to the review motion.” This court only has jurisdiction to hear an appeal from a final order of a Superior Court judge: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b). Zarnett J.A. dismissed the motion for an extension of time and ordered costs against the moving parties.

[15] The moving parties now seek to set aside or vary Zarnett J.A.’s order of this court under s. 7(5) of the Courts of Justice Act and r. 61.16 (2.2) of the Rules, an application for certiorari and mandamus, resolution of the constitutional questions, a stay of the costs orders, and other relief. The moving parties argue that their proposed appeal lies to this court under ss. 101 and 102(10) of the Courts of Justice Act and r. 40 of the Rules.

Analysis and Conclusion

[16] The circumstances in which a panel will reconsider the decision of a single judge to deny an application for an extension of time are narrow: R. v. Gatfield, 2016 ONCA 23, 345 O.A.C. 197, at para. 11.

[17] We see no reason to vary the order of Zarnett J.A. as we agree with his conclusion that there is no arguable merit to the moving parties’ challenge to the decision of Fairburn A.C.J.O. This court only has jurisdiction to hear appeals from final orders of a Superior Court judge: Courts of Justice Act, s. 6(1)(b). Appeals from interlocutory orders of a Superior Court judge should be brought before the Divisional Court: Courts of Justice Act, s. 19(1)(b).

[18] An order refusing to remove a lawyer from the record is not a final order. It is an interlocutory order as it does not determine the essential matter in dispute among the parties: Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 1998 CanLII 4519 (ON CA), 116 O.A.C. 103 (C.A.), at para. 12; Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16.

[19] Moreover, as noted by Zarnett J.A., s. 101 of the Courts of Justice Act addresses the Superior Court’s power to grant an interlocutory injunction and appoint a receiver by interlocutory order; it does not create an appeal route directly to this court. An order dismissing a request for injunctive relief is an interlocutory order, not a final one, and cannot be appealed to this court: Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784, 139 O.R. (3d) 239, at paras 1-2. Similarly, since the appointment of a receiver on an interlocutory motion is an interlocutory order (see Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 22), the refusal to appoint a receiver on an interlocutory motion is also an interlocutory order.

[20] Section 102(10) of the Courts of Justice Act cited by the moving parties,does provide that an appeal from an order under s. 102 lies to this court. However, s. 102 is applicable only to labour disputes, a defined term with no applicability to this case. Neither Glustein J.’s order nor the order of Muir A.J. was made under s. 102 of the Courts of Justice Act. Nor does r. 40, which addresses the procedure on motions for injunctions and receivers, address the appeal route or assist the moving parties.

[21] For these reasons, the motion is dismissed.

[22] In view of the result, there is no reason to stay the cost orders below. Costs of this motion to the responding party Arnold Zweig in the amount of $2,000, and costs to the LSO and LawPro in the amount of $750 each. These sums are all-inclusive.

“P. Lauwers J.A.”

“David M. Paciocco J.A.”

“J.A. Thorburn J.A.”