COURT OF APPEAL FOR ONTARIO DATE: 20231110 DOCKET: M54442 (COA-23-CV-0812)

Trotter, Sossin and Monahan JJ.A.

BETWEEN

Halton Standard Condominium Corporation No. 550 Plaintiff (Moving Party/Respondent)

and

Del Ridge (Appleby) Inc. , Del Ridge Homes Inc. and the Corporation of the City of Burlington Defendants ( Responding Parties / Appellants )

Peto MacCallum Ltd. and Keith Loffler McAlpine Architects Third Parties

Counsel: Derek A. Schmuck, for the moving party Paul H. Starkman, for the responding parties

Heard: October 30, 2023

REASONS FOR DECISION

OVERVIEW

[1] The parties are involved in litigation arising from certain construction work.

[2] The moving party, Halton Standard Condominium Corporation No. 550 (“Halton”), makes this motion to quash the appeal by Del Ridge (Appleby) Inc. and Del Ridge Homes Inc. (“Del Ridge defendants”) of a motion judge’s order. That ordered denied certain variations in previous relief granted concerning expert reports and denied a motion for a stay of the underlying action based on the nondisclosure of a litigation agreement entered into by Halton, the City of Burlington, and two third parties, but excluding the Del Ridge defendants (the “Pierringer Agreement”).

[3] Concerning the expert evidence aspect of the order, the motion judge noted that he had previously ordered Halton to produce all the underlying documents from participating expert witnesses. He found that if the documents have not been produced it is open to the Del Ridge defendants to bring a motion to remedy the situation. The Del Ridge defendants did not bring any such motion. On this basis, the motion judge declined to vary his previous order.

[4] The motion judge next assessed the impact of the Pierringer Agreement and found that it did not entirely change the litigation environment. While the agreement released Burlington from liability for some claims, it did not address all the claims between the two parties, and so the Pierringer Agreement did not bring the litigation between Halton and Burlington to an end. Similarly, the agreement did not end crossclaims between Burlington and the remaining defendants, it did not contemplate cooperation between the parties, nor did it require the provision of evidence from the settling parties to Halton. On these bases, the motion judge found that the subject agreement was “not an agreement which requires immediate disclosure.”

ISSUES

[5] Halton’s motion to quash raises the question of whether the motion judge’s order concerning the expert evidence and the stay were final or interlocutory. Sections 6(1)(b) and 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provide that only final orders are appealable to this court, while interlocutory orders are appealable to the Divisional Court, with leave.

ANALYSIS

[6] This court provided a clear explanation of the distinction between interlocutory and final orders in 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822. Specifically, Feldman J.A. stated that a final order “disposes of the litigation or finally disposes of part of the litigation” while an interlocutory order “disposes of the issue raised, most often a procedural issue, but the litigation proceeds”: Frezza, at para. 7.

(1) The expert evidence aspect of the order is interlocutory

[7] With respect to the relief sought by the Del Ridge defendants concerning expert reports, the motion judge observed that this issue should be reserved for the trial judge. The motion judge ordered Halton to write to its retained experts to obtain all their supporting documentation, and specifically referred to the Del Ridge defendants’ ability to bring a motion under r. 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, if this was not done.

[8] The Del Ridge defendants argue that this aspect of the order was a final decision, at least in relation to the non-parties involved, relying on case law from this court which has recognized decisions under r. 30.10 as final.

[9] We reject this submission.

[10] There is nothing in the motion judge’s decision that would preclude the Del Ridge defendants from bringing an r. 30.10 motion for relief. Having not yet brought such a motion, the order of the motion judge remains procedural and interlocutory. It determines no rights, forecloses no remedies, and the litigation proceeds despite the order.

(2) The denial of the stay aspect of the order is final

[11] The Del Ridge defendants argue that an order denying a stay of an action on the basis that a settlement agreement was not disclosed as soon as it was completed is a final order, and so its appeal is properly before this court.

[12] The broad principle stated by this court “is that an order granting a stay is final, but an order refusing one is interlocutory”: McClintock v. Karam, 2017 ONCA 277, at para. 1; Ontario (Attorney General) v. Nanji, 2020 ONCA 591, at para. 8. However, in the narrow context of motions alleging an abuse of process as a result of the failure to disclose a litigation agreement, an order granting or dismissing a stay has been treated as final: Aecon Buildings v. Brampton (City), 2010 ONCA 773, at para. 2; CHU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, at paras. 38-45; Handley Estate v. DTE Industries Limited, 2018 ONCA 324, 421 D.L.R. (4th) 636, at paras. 46-48.

[13] By contrast, the respondent raises Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, where this court concluded that a denial of a motion to stay one of two similar class actions proceeding in different jurisdictions was interlocutory. As Zarnett J.A. explained, at para. 20, “… it is clear that the refusal to stay the Ontario Action at the request of the Quebec Plaintiff is an interlocutory order. The dismissal of his stay request does not determine the subject matter of the Ontario Action or of any action. It does not determine any substantive right to relief that the Quebec Plaintiff, the Ontario Plaintiff, or any potential class member has against the Defendants, nor does it determine any substantive defence. It does not terminate the Quebec Plaintiff’s right to proceed with the Quebec Action. It does not determine the Quebec Plaintiff’s right or any potential class member’s right to opt out of the Ontario Action if the latter is certified as a class proceeding. Nor does it determine anyone’s right to pursue an individual claim.”

[14] However, Drywall Acoustic is distinguishable from Aecon, Handley, Chu and the present case. While Drywall Acoustic did involve a stay of proceedings, it did not implicate a settlement agreement, nor did it concern the specific issue of abuse of process.

[15] Consequently, the appeal of the motion judge’s denial of the stay requested due to the alleged abuse of process from the non-disclosure of the Pierringer Agreement in this case lies to this court.

[16] While the motion judge’s decision relating to the expert evidence is interlocutory for the reasons stated above, the appeal of the otherwise interlocutory question of the motion judge’s decision concerning expert evidence may also be heard by this court as part of the appeal from the stay denial. This court can take jurisdiction over the appeal of the interlocutory aspects of an order if the issues in the final and interlocutory aspects of the order “are so interrelated that” that “there is a good reason to hear them together”: Cooper v. The Laundry Lounge, Inc., 2020 ONCA 166, at para. 2; Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at paras. 25-26, leave to appeal refused, [2017] S.C.C.A. No. 289. This is the case here. The final and interlocutory aspects of the order are bound together in that the disposition of the stay appeal may also dispose of the need of the interlocutory order. To avoid potentially unnecessary duplication of efforts, the appeals from the two aspects of the order will be heard together.

DISPOSITION

[17] For these reasons, the motion to quash is denied.

[18] The Del Ridge defendants are entitled to costs from Halton in the amount of $10,000, all inclusive.

“Gary Trotter J.A.”

“L. Sossin J.A.”

“P.J. Monahan J.A.”