Court of Appeal for Ontario

DATE: 20230901 DOCKET: M54354 (COA-23-CV-0427)

van Rensburg, Nordheimer and George JJ.A.

Parties and Counsel

BETWEEN

Nordik Windows Inc. Plaintiff (Respondent/Moving Party)

and

Aviva Insurance Company of Canada, Aviva General Insurance Company and Aviva Canada Inc. Defendants (Appellants/Responding Parties)

Proceeding under the Class Proceedings Act, 1992

Counsel: Crawford G. Smith, John Carlo Mastrangelo, and Stephen M. Birman, for the moving party Nordik Windows Inc. Alan L.W. D’Silva and Glenn Zacher, for the responding parties Aviva Insurance Company of Canada, Aviva General Insurance Company and Aviva Canada Inc.

Heard: August 30, 2023

On appeal from the order of Justice Edward M. Morgan of the Superior Court of Justice, dated March 23, 2023, with reasons reported at 2023 ONSC 1804.

Reasons for Decision

[1] This is a motion by the respondent to the appeal (“Nordik”) to quash an appeal by the appellants (together, “Aviva”) on the basis that the order under appeal is interlocutory and that the correct route of appeal is to the Divisional Court with leave. Aviva contends that the order under appeal is final because it determined on a final basis that a limitation period had not expired, and accordingly deprived it of a defence to the action.

[2] We disagree.

[3] First, there is nothing in the order under appeal to suggest that the limitation period defence was disposed of. It says only that the limitation period motion is dismissed.

[4] Second, we disagree with Aviva that the motion judge’s reasons make it clear that the limitation period issue has been determined on a final basis.

[5] In the section of the reasons dealing with Aviva’s limitation period motion, the motion judge, after setting out the positions of the parties and some relevant case law, noted that all of the case law must be analyzed and the answer worked out with a full factual record at the court’s disposal: at para. 116. He also noted that Aviva’s motion, in effect, would pre-empt the common issues trial: at para. 117. He stated that he did not have to decide the point: at para. 120.

[6] In response to the motion to quash, Aviva asserts that, notwithstanding everything else in his reasons, the motion judge made a final determination of the limitation period issue at para. 111 (where he stated that “as of July 3, 2020, the date of issuance of the Statement of Claim, any limitation period applicable to class members’ claims against the Defendants were suspended pursuant to s. 28(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6”).

[7] This argument was made to the motion judge and rejected by him when the parties attended at a case conference to settle the terms of the certification and limitation period orders. The motion judge disagreed with Aviva’s reading of his conclusion, and he confirmed that there was no declaratory relief granted in respect of the limitation period motion. Rather, his statement with respect to suspending limitation periods was part of his chain of reasoning. As such, the motion was dismissed without coming to a conclusion on the limitation period issue.

[8] Aviva’s reliance on para. 111 of the motion judge’s reasons, taken out of context, is misplaced. There is nothing in the order or the reasons, when read as a whole, to indicate that the motion judge made a final determination of the limitation period issues raised in Aviva’s motion. As such the order under appeal is an interlocutory order, appealable only to the Divisional Court, with leave.

[9] The appeal is therefore quashed. Costs to the moving party in the agreed inclusive amount of $15,000.

“K. van Rensburg J.A.”

“I.V.B. Nordheimer J.A.”

“J. George J.A.”