COURT OF APPEAL FOR ONTARIO

DATE: 20210915

DOCKET: M52455 & M52738

Zarnett J.A. (Motions Judge)

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

R. Leigh Youd and Peter Smiley, for the responding party

Heard: in writing

ENDORSEMENT

[1] The moving parties request: (i) an extension of time to perfect the motion they have brought under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “review motion”); and (ii) other relief, including certiorari, mandamus, judicial review, and a stay of outstanding cost orders.

[2] Dealing first with the request for an extension of time, the review motion asks that a panel of this court set aside or vary the order of Fairburn A.C.J.O., dated June 3, 2021. The notice of motion for the review motion was filed on June 8, 2021. Rule 61.16(4)(a)(ii) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 required the moving parties to deliver a motion record and a factum for the review motion within 30 days of the notice of motion. Because they did not do so, the Registrar gave notice, dated July 19, 2021, of an intention to dismiss the review motion for delay unless the motion record and factum were filed by August 3, 2021.

[3] Although the moving parties attempted, on August 3, 2021, to file a motion record and factum, the materials were rejected by the office of the Registrar as procedurally deficient.

[4] The test for an extension of time relating to a motion to a panel to review an order of a single judge involves consideration of the following factors: whether the moving parties had an intention to proceed with the review motion within the relevant time limits, the length of (and any explanation for) delay, prejudice to the respondent, and the justice of the case. The last factor, whether the justice of the case requires an extension, is the most important, and involves consideration of the merits of the underlying motion: D.G. v. A.F., 2014 ONCA 436, at para. 11.

[5] I accept that the moving parties formed the intention to proceed with the review motion within the required time, and that while the explanation for the delay in waiting until August 3, 2021 to attempt to file materials is not entirely satisfactory, some effort was made on that date. However, in my view, 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.

[6] The order of June 3, 2021, at its core, refused to direct the Registrar to accept the moving parties’ notice of appeal from an order of Glustein J. of the Superior Court of Justice, because Glustein J.’s order was interlocutory and no appeal lies from it to this court. The Court of Appeal only has jurisdiction to hear an appeal from a final order of a Superior Court judge: Courts of Justice Act, s. 6(1)(b).

[7] There is no merit to the moving parties’ complaint that there was an error in that conclusion.

[8] Glustein J.’s order dismissed an appeal by the moving parties from an order of Master Muir refusing their request to remove counsel for the responding party Arnold Zweig from the record in an ongoing Superior Court action between the moving parties and Mr. Zweig. An order refusing to remove a lawyer from the record is an interlocutory order: 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. It is interlocutory because it does not determine the substance of any claims or defences in the Superior Court action, which remains ongoing. As this court has explained, “[a]n interlocutory order is one which does not determine the real matter in dispute between the parties—the very subject matter of the litigation—or any substantive right to relief of a plaintiff or substantive right of a defendant. Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided”: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16.

[9] The moving parties’ position is not assisted by the fact that, in addition to dismissing their appeal of the Master’s order, Glustein J. also dismissed their request under r. 59.06 to set aside the Master’s order because of alleged fresh facts or fraud discovered after the order was made. The refusal of that relief was, for the same reasons, also an interlocutory order.

[10] 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 of Civil Procedure. The argument is presumably based on the fact that they requested that Glustein J. appoint an interim receiver of the Law Society of Ontario, further to their allegation that it was involved in the alleged fraud that formed the basis for their request to remove Mr. Zweig’s counsel from the record. Glustein J. refused that request, finding the alleged fraud was not shown.

[11] Section 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 an interlocutory injunction 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.

[12] Section 102(10) of the Courts of Justice Act 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 Master Muir) 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 here.

[13] Glustein J. also dismissed a request of the moving parties to declare the Law Society of Ontario and Lawyers Professional Indemnity Company to be vexatious litigants under s. 140 of the Courts of Justice Act. Glustein J. held that the accusation that they were involved as co-conspirators with Mr. Zweig in the conduct said to warrant the removal of Mr. Zweig’s counsel had properly been found by the Master to be baseless, and that the grounds to declare either party a vexatious litigant were not established.

[14] An order under s. 140(1) of the Courts of Justice Act is to be sought by application, not by motion in an action: Lukezic v. Royal Bank of Canada, 2012 ONCA 350, 350 D.L.R. (4th) 111, at paras. 7-12, 17. Regardless of the appeal route that might apply if a separate application had been brought that named the Law Society of Ontario and Lawyers Professional Indemnity Company as respondents and sought to have them declared vexatious litigants, that process was not followed in this case. The moving parties sought this relief by way of a motion in an action to which only they and Mr. Zweig are parties. They did so in connection with other relief they sought directed at how and by whom Mr. Zweig should be represented in the action, which is an interlocutory matter. Simply because an order involves a non-party does not automatically make it a final order, when the order is not being appealed by the non-party: Royal Trust Corporation v. Fisherman (2001), 2001 CanLII 4080 (ON CA), 55 O.R. (3d) 794, at para. 12. In my view, the fact that the moving parties requested, and were refused, relief against persons not parties to their action on grounds that were intertwined with the basis they sought interlocutory orders against Mr. Zweig cannot serve to change the interlocutory nature of the order they seek to appeal.

[15] Given the absence of arguable merit to a review of the core of the June 3, 2021 order, there is an absence of arguable merit to a review of any other aspects of that order.

[16] The moving parties express concerns about communications between counsel for Mr. Zweig and the office of the Registrar that preceded the Registrar’s refusal to accept, for filing, their notice of appeal of Glustein J.’s order. Fairburn A.C.J.O.’s findings were that all of the communications were initiated and directed by the court to understand the jurisdictional issue, there was nothing secretive about them as the email was provided to the moving parties, and there was nothing wrong with them. Fundamentally, as Fairburn A.C.J.O. stated, “[n]othing about the communications … changes the fact that this is an interlocutory matter that cannot be appealed to the Court of Appeal for Ontario.”

[17] Similarly, once it was properly found that there was no appeal properly pending in this court, there was nothing to jurisdictionally ground the other requests for relief made by the moving parties that were dismissed by the June 3, 2021 order.

[18] Accordingly, I deny the request for an extension of time to perfect the review motion. Given that there is no appeal properly pending in this court and that time to perfect the review motion has not been extended, there is no basis to consider the certiorari, mandamus, judicial review, and stay relief requested by the moving parties.

[19] The motion is dismissed. Costs are awarded to the responding party Mr. Zweig in the sum of $1,000, inclusive of disbursements and applicable taxes.

“B. Zarnett J.A.”