



COURT OF APPEAL FOR ONTARIO

CITATION: 1476335 Ontario Inc. v. Frezza,
    2021 ONCA 822

DATE: 20211118

DOCKET: M52811 & M52846 (C69611)

Feldman, van Rensburg and Coroza
    JJ.A.

BETWEEN

1476335
    Ontario Inc., Aldo Rotondi, DAndrea Management

Inc. and Rick DAndrea

Plaintiffs

(Appellants/Moving
    Parties)

and

Brenda
    Frezza, Onorio Frezza, Elio Ascenzo Frezza, Jane

Frezza
and Frezza Management Inc.

Defendants

(
Respondents/Responding
    Parties
)

Anthony J. Gabriele, for the moving
    parties

D. John Kirby, for the responding party
    Brenda Frezza

No one appearing for the responding
    parties Onorio Frezza, Elio Ascenzo Frezza and Jane Frezza

Heard: November 5, 2021 by video conference

Feldman J.A.:

A.

Introduction

[1]

There were two motions before the court. The
    first asked the court to determine whether it has jurisdiction to hear the
    appeal. The second asked for interim relief pending appeal. During the hearing,
    the court determined that it did not have jurisdiction to hear the appeal or to
    grant interim relief, but proceeded to hear submissions on whether the court
    should seek the permission of the Chief Justice of the Superior Court to sit as
    the Divisional Court for the purpose of considering whether to grant the
    request for interim relief.

B.

Background

[2]

The moving parties are the plaintiffs in an action
    seeking to set aside three alleged fraudulent conveyances. The conveyances were
    made in or around 2003, after litigation had been commenced by the current
    defendants Elio Ascenzo Frezza, Onorio Frezza, and Frezza Management Inc., as
    well as others, against a number of parties including the current plaintiffs. This
    prior litigation was dismissed in 2016 and resulted in a significant costs
    award in favour of the current plaintiffs.

[3]

While the current plaintiffs have recovered some
    of the costs awarded to them, $700,000 in costs remains outstanding. In the
    current action, the plaintiffs allege that during the prior litigation, the
    current defendants Elio Ascenzo Frezza, Onorio Frezza, and Frezza Management
    Inc. fraudulently transferred three properties to Jane Frezza and Brenda Frezza,
    who were not parties to the prior litigation, for nominal consideration. The
    plaintiffs say that, as a result of these transfers, they are unable to enforce
    the costs order from the prior litigation against those defendants. They
    commenced the action for fraudulent conveyance against both the transferors and
    the recipients of the properties, the current defendants, and sought a
    certificate of pending litigation to prevent the disposal of the properties.
    One property is scheduled to be sold in January 2022.

[4]

The plaintiffs motion for a certificate of pending
    litigation over two properties that are now owned by Brenda Frezza was
    dismissed by the motion judge on the basis that the fraudulent conveyance
    action is statute-barred. He also found that in any event, a balancing of the equities
    favoured the defendants. The plaintiffs took two steps to appeal: they sought
    leave to appeal to the Divisional Court on the basis that the order denying the
    certificate may be interlocutory, and at the same time they filed a notice of
    appeal to this court on the basis that the order may be final. The appellants
    adopted this unusual procedure on the basis that they were uncertain whether
    the motion judges order was final or interlocutory. The respondents took no
    position on the jurisdiction issue.

[5]

The moving parties asked, and the Divisional
    Court agreed on this occasion, to hold the leave motion in abeyance while a
    motion for directions was brought in this court to ask the court to determine
    the jurisdiction issue. The moving parties also brought a second motion in this
    court asking the court to grant leave to issue and register a certificate of
    pending litigation as interim relief pending appeal. Brown J.A., sitting in
    chambers, referred the interim relief motion to the panel to be heard following
    the panels determination whether this court has the jurisdiction to hear the
    appeal:
1476335 Ontario Inc. v. Frezza
, 2021 ONCA 732. The panel heard
    both motions.

C.

Issues and Analysis

(1)

Is the order under appeal a final or an interlocutory
    order?

[6]

The first issue to be determined was whether the
    order under appeal was a final or an interlocutory order. An appeal lies to the
    Court of Appeal from a final order of a judge of the Superior Court of Justice for
    an amount of $50,000 or more:
Courts of Justice Act
, R.S.O. 1990, c. C.43,
    ss. 6(1)(b), 19(1)(a), and 19(1.2). A final order involving less than $50,000
    is appealed to the Divisional Court: ss. 19(1)(a) and 19(1.2). An
    interlocutory order of a Superior Court judge is appealed to the Divisional
    Court, and requires leave of that court: s.19(1)(b). Rule 62.02(4) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, sets out the grounds for
    granting leave to appeal to the Divisional Court:

62.02(4) Leave to appeal from an interlocutory
    order shall not be granted unless,

(a) there is a
    conflicting decision by another judge or court in Ontario or elsewhere on the
    matter involved in the proposed appeal and it is, in the opinion of the panel
    hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to
    the panel hearing the motion good reason to doubt the correctness of the order
    in question and the proposed appeal involves matters of such importance that,
    in the panels opinion, leave to appeal should be granted.

[7]

A final order disposes of the litigation, or
    finally disposes of part of the litigation:
Ball v. Donais
(1993), 13
    O.R. (3d) 322 (C.A.). An interlocutory order disposes of the issue raised, most
    often a procedural issue, but the litigation proceeds:
Hendrickson v. Kallio
,
    [1932] O.R. 675 (C.A.), at p. 678.

[8]

As is apparent from the strict requirements for
    leave to be granted to appeal interlocutory orders, appeals from such orders
    are intended to be very limited. On the other hand, appeals from final orders
    are as of right. As a result, the issue of whether an order is final or
    interlocutory determines not only which court has jurisdiction, but also the
    extent to which an appeal will lie from the order.

[9]

The order sought to be appealed in this case is
    an order denying leave to issue and register a certificate of pending
    litigation. A number of authorities from this court have held that an order
    granting or lifting a certificate of pending litigation is an interlocutory
    order: see
Archer v. Archer
(1975), 11 O.R. (2d) 432 (C.A.);
Amphenol
    Canada Corp. v. Sundaram
, 2019 ONCA 932, 56 C.P.C. (8th) 307;
561895
    Ontario Ltd. v. Metropolitan Trust Co. of Canada
(1997), 14 C.P.C. (4th)
    195 (Ont. C.A.), leave to appeal to S.C.C. refused, 26191 (November 20, 1997).
    The reason is that the granting or lifting of the certificate does not finally
    determine the litigation, which is ongoing. The refusal to grant a certificate
    is analogous. It does not finally determine any issue in the litigation, which
    remains ongoing. It is therefore an interlocutory order. As a result, the
    appeal does not lie to the Court of Appeal but to the Divisional Court with
    leave.

[10]

The appellants asked the court whether the order
    could be viewed as final based on the reasons of the motion judge. The motion
    judges primary reason for denying the certificate was that the action is
    statute-barred. If that finding is binding on a trial or summary judgment
    judge, then the order that included that finding would be a final order. The
    answer is no: the reasons for denying the motion for a certificate of pending
    litigation are not binding on the trial or summary judgment judge.

[11]

The issue of whether the reasons for dismissing
    a summary judgment motion constitute binding findings was recently discussed by
    this court in
Skunk v. Ketash
, 2016 ONCA 841, 135 O.R. (3d) 180, where
    Hoy A.C.J.O. set out the following helpful summary of the effect of this
    courts jurisprudence, at para. 58:

58      In an attempt to provide greater
    clarity, I would summarize the effect of this courts jurisprudence as follows:

1. The general rule is that an order
    dismissing a motion for summary judgment is an interlocutory, and not a final,
    order.

2. If a party argues that the motion judge
    made a final, binding determination of law that disposes of the substantive
    rights of one of the parties (Binding Legal Determination) in dismissing the
    summary judgment motion, then this court will consider whether the motion judges
    order invokes r. 20.04(4) and references the legal determination that the party
    argues is a Binding Legal Determination.

3. If the order does not invoke r. 20.04(4)
    and reference the legal determination that the party argues is a Binding Legal
    Determination, the court will usually consider whether the precise scope of the
    point of law determined by the motion judge is clear and whether it is clear
    that the motion judge intended that her determination be binding on the parties
    at trial. In this case, it was not clear that the motion judge intended his
    determination to be binding on the parties at trial.

[12]

On a summary judgment motion, the
Rules
contemplate that binding determinations may be made by the summary judgment motion
    judge, either by invoking r. 20.04(4) or otherwise indicating that one or more
    findings is intended to be final and binding. This is because a summary
    judgment motion is intended to dispose of the action, if appropriate, either by
    granting or denying judgment, or, if that is not possible, to narrow the issues
    that require a trial.

[13]

However, the same approach is not appropriate
    and therefore not available (except possibly on the request or consent of the
    parties) on a motion that seeks specific interim relief, but does not seek to
    finally dispose of an issue in the action. On such motions, the record is
    tailored to the relief sought and may not be the full record required for the
    final determination of an issue in the litigation. Further, the motion does not
    request a final determination in the relief sought. As a result, the order that
    flows from the reasons will only address the relief sought.

[14]

In this case, the reasons of the motion judge
    for denying the certificate of pending litigation do not bind the trial or
    summary judgment judge. They do not constitute the final determination of the
    limitation issue because the court was not asked to determine that issue for
    the purpose of granting or denying judgment. The full record for finally
    determining the issue may or may not have been placed before the motion judge,
    but only enough to allow the motion judge to make or deny the discretionary
    order that was sought. In any event, the court was not asked to make a final
    determination of the limitation issue.

(2)

Where the court does not have jurisdiction over
    the appeal, can it make an interim order pending the appeal?

[15]

Having found that the order sought to be
    appealed is an interlocutory order which can only be appealed to the Divisional
    Court with leave of that court, the next issue that was argued was the motion
    for interim relief.

[16]

Section 134(2) of the
Courts of Justice Act
states:

On motion, a court to which a motion for leave
    to appeal is made or to which an appeal is taken may make any interim order
    that is considered just to prevent prejudice to a party pending the appeal.

[17]

I agree with Brown J.A. that where the court
    does not have jurisdiction to hear the appeal, it cannot make an interim order
    because such an order can only be made pending the appeal.

[18]

There have been rare occasions in the past where
    an appeal has been wrongly commenced in this court and proceeded to an oral
    hearing before anyone realized that the appeal was in the wrong court, and where,
    on consent of all parties, the court has requested the authority of the Chief
    Justice of the Superior Court to sit as the Divisional Court in order to save
    time and cost:
Courts of Justice Act
, ss. 13 and 18;
Tomec v.
    Economical Mutual Insurance Company
, 2019 ONCA 839, 148 O.R. (3d) 433, at
    paras. 12-14.

[19]

This is not an appropriate case to seek to apply
    this procedure. The appeal to this court was not brought by mistake. The
    appellants have their leave to appeal motion ready to proceed in the Divisional
    Court. The appellants may seek their interim relief from the Divisional Court,
    if they decide to proceed with the appeal to that court.

D.

Conclusion

[20]

In the result, the appeal in this court is
    quashed. The parties agreed that costs in the amount of $5,000, inclusive of
    disbursements and HST, be awarded to the successful party. As this motion was
    in essence a motion for the direction of the court, without opposition, the costs
    of $5,000, which will include the $250 awarded by Brown J.A., will be in the
    cause of the action.

Released: November 18, 2021 K.F.

K.
    Feldman J.A.

I
    agree. K. van Rensburg J.A.

I agree. Coroza J.A.


