



COURT OF APPEAL FOR ONTARIO

CITATION: Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932

DATE: 20191126

DOCKET: M50847 (C67302)

van Rensburg, Paciocco and Thorburn JJ.A.

BETWEEN

Amphenol Canada Corp.

Plaintiff (Respondent/Moving Party)

and

Nandakumar Sundaram, a.k.a. Kumar Sundaram
, Chandra Devappa,

Sundev Technologies Inc.
, MTech Ltd., John Doe, Jane Doe, and other
persons unknown who have conspired with the named Defendants

Defendants (
Appellants/Responding Parties
)

Brendan Wong, for the moving party Amphenol Canada Corp.

Nikolay Y. Chsherbinin, for the responding parties
    Nandakumar Sundaram, a.k.a. Kumar Sundaram and Sundev Technologies Inc.

Heard: November
    20, 2019

REASONS FOR
    DECISION

OVERVIEW

[1]

The appellants,
Nandakumar Sundaram
    (a.k.a. Kumar Sundaram) and Sundev Technologies Inc. (the appellants) have
    brought an appeal
of an order before this court. The order in
    question was an order quashing a motion to set aside prior orders granting a
Mareva
injunction, certificates of pending litigation, and
Norwich
orders (the Quash Order).

[2]

The appellants argue that this court has jurisdiction to hear the appeal
    from the Quash Order because the motion judges order is final, and unless they
    are entitled to appeal the order, they will be forever precluded from being
    heard on the issue of the granting of a
Mareva
injunction and the
    finding that there was a
prima face
case of fraud against them.

[3]

The moving party/respondent, Amphenol Canada Corp. (Amphenol), claims
    there is no right to appeal an interlocutory order to the Court of Appeal and
    any appeal of the Quash Order must be to the Divisional Court pursuant to s.
    19(1)(b) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43. Amphenol
    therefore claims its motion to quash the appeal should be granted.

[4]

After hearing argument on the motion, we quashed the appeal, with
    reasons to follow. These are our reasons.

BACKGROUND

[5]

The underlying action is a claim brought by Amphenol against Nandakumar
    Sundaram, a.k.a. Kumar Sundaram, Chandra Devappa, Sundev Technologies Inc.,
    MTech Ltd., John Doe, Jane Doe, and other persons unknown who have conspired
    with the named defendants. Amphenol claims the defendants perpetrated a fraud
    against them.

[6]

On January 15, 2019, before serving the Statement of Claim, Amphenol
    obtained an
ex parte
order from Akbarali J. against the appellants
    (the Initial Order). The Initial Order included a
Mareva
injunction
    to freeze the assets of the appellants, certificates of pending litigation against
    properties owned by some of the appellants, and
Norwich
orders.

[7]

After issuing the Statement of Claim, Amphenol sought an order to
    continue the injunctive relief.

[8]

On the return date, the appellants did not file affidavit evidence, nor
    did they oppose the continuation of the Initial Order, which was opposed only
    by the defendants Devappa and MTech Ltd.

[9]

On February 4, 2019, Faieta J. granted an order continuing the Initial
    Order against Sundaram, Sundev, and Devappa, but not against MTech Ltd. (This second
    order is referred to as the Continuation Order).

[10]

On February 15, 2019, the appellants brought a motion to set aside
    aspects of the Initial Order and the Continuation Order (the Set Aside
    Motion). Among other things, they took the position that they were entitled to
    bring the Set Aside Motion after having the opportunity to file materials and
    conduct cross-examinations. They claimed this entitlement notwithstanding that
    they had not participated in the motion leading to the Continuation Order. They
    said it is in keeping with the Initial Order, which provided that they may
    apply to the Court at any time to vary or discharge this Order.

[11]

In response, Amphenol brought a motion to quash the Set Aside Motion. On
    July 15, 2019, Faieta J. quashed the Set Aside Motion on the grounds that the
    matter was
res judicata
and an abuse of process (the Quash Order).

[12]

In his reasons, Faieta J. held that,

[A]ll of the conditions for
    establishing issue estoppel have been satisfied. The same question raised by the
    Set Aside Motion, namely whether there is a strong
prima facie
case
    against Sundaram and Sundev and thus whether the initial Order should continue
    against them, was determined at the Continuation Motion. The Continuation Order
    is final.

[13]

On August 12, 2019, the appellants filed a Notice of Appeal, seeking
    leave to appeal the Quash Order.

[14]

On September 25, 2019, Amphenol brought a motion to quash the appeal on
    the basis that this court lacks jurisdiction.

THE ISSUE

[15]

The issue on this motion is whether the Quash Order is an interlocutory
    order requiring an appeal to the Divisional Court pursuant to s. 19(1)(b) of
    the
Courts of Justice Act
, or whether it is a final order properly
    appealed to this court.

ANALYSIS AND CONCLUSION

[16]

We disagree with the appellants assertion that the Quash Order was
    final because they were never given the opportunity to be heard on the
Mareva
injunction and, unless they appeal to this Court, they will be forever
    precluded from a challenge on the merits and will be permanently deprived of a
    substantive right.

[17]

As noted by counsel for Amphenol, the Quash Order did not finally
    determine the real matter in dispute, that is, whether the appellants committed
    fraud. The Initial Order, Continuation Order, and Quash Order were all
    interlocutory decisions, which specifically related to a
Mareva
injunction, certificates of pending litigation, and
Norwich
orders.

[18]

Interlocutory orders do not determine the real matter in dispute
    between the parties  the very subject matter of the litigation, but only a
    collateral issue. The orders may be final in the sense that they determine the
    very question raised by the applications, but they are interlocutory if the
    merits of the case remain to be determined:
Hendrickson v. Kallio
,
    [1932] O.R. 675, at p. 4.

[19]

The characterization of an order depends on its legal nature not its
    practical effect. Accordingly, although the practical effect of quashing a
    motion to set aside an interlocutory injunction may effectively end some part
    of the litigation, the legal nature of such an order remains interlocutory for
    the purposes of appeal:
Ontario Medical Association v. Miller
(1976),
    14 O.R. (2d) 468 (C.A.).

[20]

In this case, while there was no opportunity pending trial to set aside
    the order to continue the
Mareva
injunction, certificates of pending
    litigation, and
Norwich
Orders pending trial, that does not finally
    dispose of whether fraud was perpetrated on Amphenol. While we note that Faieta
    J. accepted that Amphenol satisfied him that there was a
prima facie
case of fraud, that issue was not finally disposed of.

[21]

Moreover, the law is clear that an appeal lies from the order, not the
    reasons for granting the order:
Grand River Enterprises v. Burnham
(2005), 197 O.A.C. 168 (C.A.), at para. 10. As such, the appeal is not from the
    reasons of Faieta J., in which he held that he accepted there was a
prima
    facie
case of fraud.

[22]

This is not a case like
Meisels v. Lawyers Professional Indemnity
    Company
, 2015 ONCA 406, 126 O.R. (3d) 448, where the appellants claim was
    held to be a nullity. Nor is this a case like
Ball v. Donais,
(1993),
    13 O.R. (3d) 322 (C.A.), which involved an appeal from an order determining
    that an action was not statute-barred. Denying an appeal from that order would
    have denied the defendants right to raise the defence that the plaintiff
    failed to sue within the limitation period. In that case, the order was final
    in the sense that it was determinative of the entire action.

[23]

Unlike those cases, the
Mareva
injunction, certificates of
    pending litigation, and
Norwich
orders are imposed
pending
a
    determination of the issues at trial. They do not finally determine the essence
    of the dispute, which is the allegation of fraud. As such, they are
    interlocutory not final orders.

[24]

Interlocutory orders of a single judge of the Superior Court of Justice,
    such as these, must be appealed with leave to the Divisional Court pursuant to
    s. 19(1)(b) of the
Courts of Justice Act
.

[25]

For these reasons, the motion to quash appeal is granted without
    prejudice to the appellants right to seek leave to appeal to the Divisional
    Court.

[26]

Costs payable to the moving party, Amphenol, in the amount of $2,500
    all-inclusive, as agreed by the parties.

K. van Rensburg J.A.

David M. Paciocco
    J.A.

J.A. Thorburn J.A.


