



COURT OF APPEAL FOR ONTARIO

CITATION:
Locking v. Armtec
    Infrastructure Inc., 2012 ONCA 774

DATE: 20121114

DOCKET: C54955

Armstrong, Watt and Pepall JJ.A.

BETWEEN

Keith Locking

Plaintiff (
Appellant
)

and

Armtec
    Infrastructure Inc., Scotia Capital Inc., TD Securities Inc., BMO
    Nesbitt Burns Inc., Charles M. Phillips, James R. Newell, Robert
    J. Wright, Ron V. Adams, Don W. Cameron, Brian W.
    Jamieson, John E. Richardson and Michael S. Skea

Defendants

Proceedings under the
Class
    Proceedings Act
,
1992

AND BETWEEN

Bruce Simmonds, Robert
    Grant and Gordon Moore

Plaintiffs (
Respondents
)

and

Armtec
    Infrastructure Inc., Charles M. Phillips, James R. Newell, Michael
    S. Skea, Donald W. Cameron, Scotia Capital Inc., TD
    Securities Inc. and BMO Nesbitt Burns Inc.

Defendants

Proceedings under the
Class
    Proceedings Act
,
1992

Earl A. Cherniak, Q.C., for Siskinds
    LLP, counsel to the plaintiff/appellant Keith Locking

Paul J. Pape and David S.
    Steinberg, for Sutts, Strosberg LLP, counsel to the plaintiffs/respondents
    Bruce Simmonds, Robert Grant and Gordon Moore

Heard: May 22, 2012

On appeal from the order of
    Justice Bruce G. Thomas of the Superior Court of Justice, dated January 20,
    2012.

By the
    Court:

Background

[1]

Bruce Simmonds, Robert Grant and Gordon Moore commenced proceedings against
    Armtec Infrastructure Inc. and others (the Simmonds action) under the
Class
    Proceedings Act, 1992
, S.O.
1992
, c. 6 (the Act). Their counsel is Sutts, Strosberg
    LLP. So did Keith Locking (the Locking action). His counsel is Siskinds LLP. The
    plaintiffs in the two actions each sought to have carriage of the class action.

[2]

On January 20, 2012, the motion judge ordered that:

-

the motion for carriage made by the plaintiffs in the Simmonds  action
    be granted;

-

the motion for carriage made by the plaintiff in the Locking
    action be dismissed; and

-

the Locking action be stayed.

[3]

Keith Locking appealed that order to the Court of Appeal.

[4]

This court subsequently advised the parties that it had concluded that
    it did not have jurisdiction to hear this appeal and that the appeal lay to the
    Divisional Court with leave. These are the reasons for that decision.

Scheme of the Act

[5]

The majority of appeals under the Act are to the Divisional Court. This
    is the legislative scheme. So, for example, appeals from a certification order
    or a refusal to certify are to the Divisional Court. Numerous decisions
    involving appeals to the Divisional Court in class proceedings reflect this
    scheme: see e.g.
Chadha v. Bayer Inc.
(2001), 54 O.R. (3d) 520 (Div.
    Ct.), affd (2003), 63 O.R. (3d) 22 (C.A.);
Markson v. MBNA Canada Bank
(2005), 78 O.R. (3d) 39 (Div. Ct.), affd (2007), 85 O.R. (3d) 321 (C.A.);
Irving
    Paper Ltd. v. Atofina Chemicals Inc.
, 2010 ONSC 2705, 103 O.R. (3d) 296;
Fischer
    v. IG Investment Management Ltd.
, 2011 ONSC 292, 104 O.R. (3d) 615 (Div.
    Ct.), affd 2012 ONCA 47, 109 O.R. (3d) 498.

[6]

Under s. 30(3) of the Act, only appeals from a judgment on common issues
    or a final order that deals with the aggregate assessment of monetary relief
    are expressly stated to be to the Court of Appeal.

[7]

In
Dabbs v. Sun Life Assurance Co. of Canada
(1998), 41 O.R.
    (3d) 97 (C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 372,
    this court noted that under the Act, rights of appeal to the Court of Appeal
    are set out in s. 30(3) of the Act. In that case, the court stated that s.
    30(3) took precedence over and excluded provisions of general application such
    as s. 6(1)(b) of the
Courts of Justice Act,
R.S.O. 1990, c. C.43. This
    commentary was in the context of a representative plaintiffs motion to quash
    an appeal of a certification order and settlement approval order that had been
    brought by a class member. The appeal was quashed on the basis that the class
    member was not a party to the proceeding and, based on s. 30(3) which speaks of
    a partys right to appeal, had no standing to bring the appeal. The class
    member unsuccessfully attempted to rely on s. 6(1)(b) of the
Courts of
    Justice Act
, which permits appeals to the Court of Appeal from a final
    order of the Ontario Court (General Division) (now the Superior Court of
    Justice). As the specific provisions of the Act confer a right of appeal to the
    Court of Appeal on a party and not on a class member, they took precedence over
    the more general language found in s. 6(1)(b) of the
Courts of Justice Act
,
    which was also an earlier statute.

Courts of Justice Act

[8]

Where the Act does not specifically address the rights and avenues of
    appeal, s. 6(1)(b) of the
Courts of Justice Act
governs appeals to the
    Court of Appeal in class proceedings. It states that an appeal lies to the
    Court of Appeal from a final order of a judge of the Superior Court of Justice,
    except an order referred to in clause 19(1)(a) or an order from which an appeal
    lies to the Divisional Court under another Act.

[9]

The distinction between a final and interlocutory order was described by
    Justice Middleton in
Hendrickson v. Kallio
, [1932] O.R. 675 (C.A.), at
    p. 678:

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. It
    may be final in the sense that it determines the very question raised by the
    application, but it is interlocutory if the merits of the case remain to be
    determined.

[10]

So,
    for example, an appeal in a class proceeding from an order striking out a
    statement of claim as disclosing no reasonable cause of action is to the Court
    of Appeal. So too is an appeal from an order for summary judgment in which a
    class proceeding is dismissed.

This Appeal

[11]

As
    a carriage order is not specifically addressed in the Act, the
Courts of
    Justice Act
governs the appeal route in this case. As such, the issue
    before us is whether the motion judges order was final or interlocutory. In
    our view, it was interlocutory.

[12]

While
    this court has not addressed this issue before, some other jurisdictions in
    Canada have.

[13]

The
    Court of Appeal for British Columbia in
W.(A.) (Litigation Guardian of) v.
    British Columbia
, 2003 BCCA 448, 17 B.C.L.R. (4th) 263, and the Court of
    Appeal for Newfoundland and Labrador in
H.P. Management Inc. v.
    Newfoundland and Labrador (Minister of Finance)
, 2007 NLCA 65, 270 Nfld.
    & P.E.I.R. 277, both held that an order granting carriage of a proposed
    class action was interlocutory in nature and not final, and that in their
    jurisdictions, leave to appeal was therefore required. Those cases both involved
    stays of the action of the unsuccessful party on the carriage motion. Both
    courts held that the order staying the action did not bring an end to the
    proceedings, as the action was not stayed for all purposes, but simply as a
    class action. The unsuccessful plaintiffs could still prosecute their lawsuit
    as an ordinary action. Furthermore, if the plaintiff with carriage succeeded in
    obtaining certification, the unsuccessful plaintiffs could opt out of the class
    and continue with their own action. The only effect of the impugned order was
    to prevent the unsuccessful plaintiffs from bringing an application to have the
    action certified as a class proceeding.

[14]

As
    noted at para. 17 of
H.P. Management Inc
., the stay of proceedings did
    not determine or terminate the claim: The effect is simply to place the claim
    on hold until the rights of the class have been determined through the
    representative plaintiff.

[15]

While
    in the appeal before us, the motion judge did not expressly state that the
    Locking action was stayed for the purposes of the class action only, this was
    implicitly the case. As such, the order was interlocutory. Furthermore, to the
    extent possible, there is some advantage to uniformity of approach in class
    proceedings in Canada.

[16]

The
    cases relied upon by the appellant are distinguishable from the case before us.
    Some dealt with stays based on
forum non conveniens
or arbitration.
    These decisions involved access to the court system or the disposition of a
    substantial issue forming part of the dispute between the parties, not the
    format by which an action would proceed through the court system.

[17]

The
    appellant has not lost his right to sue the defendants. He may remain as part
    of the
proposed class action and may also seek to
    actively participate to protect his interests pursuant to s. 14 of the Act. He
    may also opt out and pursue his individual action independently.

[18]

For
    these reasons, we conclude that the motion judges order is interlocutory. An
    appeal lies to the Divisional Court with leave and not to the Court of Appeal.

[19]

Neither
    party before us raised the issue of jurisdiction, nor objected to the appeal
    proceeding in this court. In all of the circumstances, we are of the view that
    there should be no order of costs of this appeal.

Robert
    P. Armstrong J.A.

David
    Watt J.A.

S.E.
    Pepall J.A.

Released: November 14, 2012 DW


