Court of Appeal for Ontario
DATE: 20220720 DOCKET: M53429 (C70167)
Doherty, Benotto and Zarnett JJ.A.
BETWEEN
John Aquino Applicant (Appellant/Responding Party)
and
Ralph Aquino and 2241036 Ontario Inc. Respondents
Counsel: Andrew W. MacDonald, for the moving party, The Globe and Mail Inc. David T. Ullmann, for the responding party
Heard: July 13, 2022
Reasons for Decision
[1] The Globe and Mail moves to quash the appeal on the basis that the order appealed from is interlocutory. That order set aside a sealing order.
[2] The underlying action is described in the Notice of Appeal as a family dispute over the control of a real estate company, 2241036 Ontario Inc. The appellant John Aquino originally sought an order winding up the company and appointing a liquidator or receiver. The proceeding was converted to an action and Mr. Aquino’s claims were expanded to included damages and a declaration that he is a 50 percent shareholder in the company.
[3] The Globe and Mail had been reporting on the activities of Bondfield Construction Limited, a different company, in which Mr. Aquino and other members of his family were involved for several years.
[4] During the underlying proceeding, Mr. Aquino successfully obtained an order sealing an affidavit of his brother, Steven Aquino. The Globe and Mail had not been given notice and moved to set aside the sealing order. The motion was granted and the sealing order was set aside. Mr. Aquino appeals that order to this court, claiming that it is a final order.
[5] This court recently summarized the principles that determine whether an order is final or interlocutory in Paulpillai Estate v. Yusuf, 2020 ONCA 655 at para. 16:
An appeal lies from the court’s order, not from the reasons given for making the order.
An interlocutory order “does not determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right. Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided”.
In determining whether an order is final or interlocutory, “one must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order”.
The question of access to appellate review “must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case”. In other words, the characterization of the order depends upon its legal nature, not its practical effect. [Citations omitted.]
[6] Subsequently, in PI v XYZ, 2021 ONCA 901 this court considered the effect of a sealing order with respect to parties and non-parties and held that a sealing order is interlocutory as it applies to the parties to the action: at para. 38.
[7] Mr. Aquino argues that XYZ does not apply for two reasons.
[8] First, he submits that the order impacted his substantive rights to privacy. Second, the underlying action is different from XYZ because it is really a corporate restructuring or receivership action.
[9] We do not accept these submissions.
[10] The alleged impact on Mr. Aquino’s privacy rights is collateral to the subject matter of the litigation. As this court confirmed in XYZ, at para. 11:
The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral.
[11] The order setting aside the sealing order does not determine the subject matter in dispute in the litigation. The privacy rights asserted by Mr. Aquino are collateral to the main action.
[12] Nor do we accept that the analogy to corporate restructuring and bankruptcy requires a different analysis. Mr. Aquino points to the third condition noted in Paulpillai as being relevant: “the nature of the proceedings giving rise to the order”. The underlying proceeding in which the sealing order was made and then set aside was one in which he sought an order under the Business Corporations Act, R.S.O. 1990, c. B.16 for the winding up of 2241036 Ontario Inc. and the appointment of a liquidator, or alternatively the appointment of a receiver of the corporation under the Courts of Justice Act, R.S.O. 1990, c. C.43. This, he argues, is a type of restructuring proceeding and the appeal route should be informed by analogy to those under insolvency statutes, under which appeals are to be taken to the Court of Appeal, albeit with leave. He also submits that the distinction between a party and a non-party is not so easily made in this type of proceeding, compared to one in which a plaintiff seeks damages from a defendant, which was the situation in XYZ.
[13] We disagree for two reasons.
[14] First, for this court to have jurisdiction over the appeal, a statute must confer it. The order under appeal was not made in a proceeding under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 or the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36. Jurisdiction to bring an appeal to this court must exist under s. 6(1) of the Courts of Justice Act because the order is final, else it does not exist at all. It cannot be conferred by analogy.
[15] Second, the underlying proceeding was by Mr. Aquino in his alleged capacity as a shareholder of the corporation seeking its winding up and thus a share of its assets, if any are available to its shareholders. We see nothing in the nature of the underlying proceeding that creates any difficulty in treating Mr. Aquino as a party, nor in distinguishing orders that determine the very subject matter of that litigation or the substantive rights up for determination in it (that is, final orders) from orders that do not determine such matters (that is, interlocutory orders).
[16] The order under appeal is interlocutory.
[17] The appeal is quashed with costs in the agreed upon amount of $5,000 inclusive of disbursements and applicable taxes.
“Doherty J.A.”
“M.L. Benotto J.A.”
“B. Zarnett J.A.”