




COURT OF APPEAL FOR ONTARIO

CITATION:
Elguindy
v. Elguindy, 2021 ONCA 768

DATE: 20211027

DOCKET: M52719 (M52669)



Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J.
(
ad hoc
)

BETWEEN

Emad Elguindy and Irene Elguindy

Plaintiffs

and

Aziz Elguindy
and
Afrodite
Elguindy

Defendants (
Moving Party
/
Responding
Party
)

Aziz Elguindy, acting in person

Mitch Bates, for the responding party

Heard: October 22, 2021 by video conference

REASONS FOR DECISION

[1]

The moving party, Aziz Elguindy, asks that we reverse the order of van
Rensburg J.A., dated August 6, 2021. Her order refused to extend the time for the
moving party to appeal the dismissal of a motion he brought in the Superior
Court under r. 59.06 of the
Rules of Civil Procedure
, R.R.O. 1990,
Reg. 194. In his r. 59.06 motion, the moving party sought to set aside a
costs order made at trial in favour of the responding party, Afrodite Elguindy.

[2]

At the conclusion of oral argument, we dismissed the motion with reasons
to follow. These are those reasons.

[3]

The moving party did not defend the proceeding below, and was noted in
default. After the trial judge made his disposition of the action, including
making an order for costs, the moving party sought leave to appeal the costs
order to this court. Leave was denied:
Elguindy v. Elguindy
, 2020 ONCA
739.

[4]

The moving party then sought to challenge the same costs order by
applying to the trial judge under r. 59.06, alleging that he had not been given
notice of the process that led to the costs order, or that the costs order had
been obtained by fraud. On May 13, 2021, the trial judge dismissed that motion on
the basis that, having been noted in default, the moving party was not entitled
to notice, and his allegations of fraud were unfounded, unproven and
irresponsible.

[5]

The moving partys request for an extension of time to appeal the
dismissal of his r. 59.06 motion was refused by van Rensburg J.A. on the basis that
no appeal lies to this court from it. She concluded that the order dismissing
the r. 59.06 motion was an interlocutory order, not a final order, and could
therefore only be appealed, with leave, to the Divisional Court.

[6]

We see no error in this conclusion in the circumstances of this case. A final
order is one that determines the real matter in dispute between the parties  the
very subject matter of the litigation  or a substantive right to relief of a
plaintiff or substantive right of a defendant. The rights of the moving party
were adjudicated by the trial judge, including in the costs order, consequent
upon the moving party having been noted in default. The moving party sought and
was denied leave to appeal the costs order that he is concerned about. The
dismissal of his r. 59.06 motion in these circumstances cannot be said to have
been a final order. It was not the determination of the very subject matter of
the litigation or of any substantive right to relief or defence in the action,
all of which had already been determined. The dismissal of the r. 59.06 motion
was an interlocutory order:
Antique Treasures of the World Inc. v. Bauer
,
2003 CanLII 35349 (Ont. C.A.), at para. 4.





[7]

The moving party cites the decision in
Mehedi v. 2057161 Ontario
Inc.
, 2015 ONCA 670, 391 D.L.R. (4th) 374. There is no discussion in
that case of appeal routes and it cannot be taken to provide that the dismissal
of the motion under r. 59.06 resulted in a final order in this case.

[8]

The motion is dismissed, with costs payable to the responding party in
the sum of $750, inclusive of disbursements and applicable taxes.




G.R. Strathy C.J.O.

B. Zarnett J.A.

Wilton-Siegel J.


