



COURT OF APPEAL FOR ONTARIO

CITATION: Cowan v. General Filters Inc., 2018 ONCA 445

DATE: 20180510

DOCKET: C61499

Pepall, Lauwers and Paciocco JJ.A.

BETWEEN

James Cowan and Shauna Cowan

Plaintiffs (Respondents)

and

General Filters Inc., Canadian General Filters
    Limited, Lippert & Wright Fuels Ltd. also known as Dave Lippert Fuels Ltd.,
    K & S Climate Control, Oil Tech Plus Ltd., John Doe, John Doe Company and
The
    Dominion of Canada General Insurance Company

Defendants (
Appellant
, Respondents)

and

Dana Canada Inc. Filter Division

Third Party (
Respondent
)

Christopher I.R. Morrison, for the appellant

Christopher A. Chekan, for the respondent Dana Canada
    Inc. Filter Division

No one appearing for the respondents James Cowan, Shauna
    Cowan, General Filters Inc., Canadian General Filters Limited, Lippert &
    Wright Fuels Ltd. also known as Dave Lippert Fuels Ltd., K & S Climate
    Control, and Oil Tech Plus Ltd.

Heard and released orally: May 4, 2018

On appeal from the order of Justice James W. Sloan of the
    Superior Court of Justice, dated December 11, 2015, with reasons reported at
    2015 ONSC 7773.

REASONS FOR DECISION

[1]

The respondent takes the position that this court does not have
    jurisdiction to hear this appeal because the order is interlocutory and the
    appeal lies to the Divisional Court with leave.

[2]

The appellant submits that this court has jurisdiction on the basis that
    the parties had reached a settlement agreement that the motion judge had no
    authority to decline to enforce.  It argues that it is a final decision that could
    not be raised again at trial.  It relies on
Fusarelli v. Dube
, [2005]
    O.J. No. 4398 (C.A.), and
Chertow v. Chertow
(2001)
, 146 O.A.C. 141.

[3]

In our view, these cases are distinguishable.  They both dealt with the
    existence of a r. 49 offer, pursuant to the
Rules of Civil Procedure
,

R.R.O. 1990, Reg. 194, that created a new
lis
, which is not the case
    here. The issue before the motion judge was whether certain of the parties
    could remove a defendant on consent when the third party opposed such a motion.

[4]

The order does not finally dispose of the action nor does it finally
    determine any claim or defence raised in the litigation or finally determine
    any substantive right of the parties. Rather, the order leaves these to be
    resolved by subsequent adjudication.  As such, the order is an interlocutory
    order, and this court does not have jurisdiction.

[5]

The appeal is quashed for lack of jurisdiction. The appellant is to pay
    the respondent $8,000 in costs on a partial indemnity scale inclusive of
    disbursements and applicable taxes.

S.E. Pepall J.A.

P. Lauwers J.A.

David M. Paciocco J.A.


