



COURT OF APPEAL FOR ONTARIO

CITATION:
    Lad v. Marcos, 2021 ONCA 183

DATE: 20210325

DOCKET:
    M52058 (C68821)

Lauwers,
    Trotter and Zarnett JJ.A.

BETWEEN

Ishver
    Lad and Sumitra Lad

Plaintiffs

(Respondents/Moving
    Parties)

and

Manny
    Marcos, also known as Manuel Marcos also known as

Manuel
    Martins Marcos also known as Manny Martins Marcos

also
    known as Manuel M. Marcos, Joe Marcos, also known as Joe Luis

Marcos
    also known as Jose Luis Marcos also known as Jose Marcos,

Arlete
    Susana Marcos, Catarina Arruda Marcos and

Marcos
    Limited Building Design Consultants

Defendants

(Appellants/Responding
    Parties)

Dora Konomi and Timothy M. Morgan, for the
    moving parties

Ted Evangelidis, for the responding
    parties Joe Marcos, Arlete Susana Marcos, and Catarina Arruda Marcos

Gregory Hemsworth, for the responding
    parties Manny Marcos and Marcos Limited Building Design Consultants

Heard: March 18, 2021 by video conference

REASONS
    FOR DECISION

[1]

This is yet another motion to quash an appeal on
    the basis that the order under appeal is interlocutory, not final, and not
    properly before this court. The principles governing this issue were recently
    laid out in
Paulpillai Estate v. Yusuf
, 2020 ONCA 655, at
    para. 16.

[2]

The motion judge described the motion before him
    in these terms:

Joe Marcos, Arlete Marcos and Catarina Marcos,
    and separately, Manny Marcos, seek an order striking out the Plaintiffs' claims
    for declaratory relief set out in paragraphs 1(a) and (b) of the Fresh as
    Amended Statement of Claim issued June 10, 2019, together with the
    consequential and ancillary relief set out in paragraphs 1(c) - (f), without
    leave to amend. The effect of this relief, if granted, would end the
    Plaintiffs claim.



In the alternative, the defendants seek a
    determination under r. 21.01(1)(a) that the plaintiffs cannot seek and are not
    entitled to the declaratory relief sought in paragraphs 1(a) and (b) of the
    Fresh as Amended Statement of Claim, and therefore are not entitled to the
    ancillary and consequential relief arising therefrom sought in paragraphs 1 (c)
    - (f).

[3]

The nub of the motion judges decision is this:

For the reasons that follow, the motion is
    dismissed. In reaching this result, I make no comment of the viability of the
    causes of action either as pleaded, or as determined on a full record, or with
    respect to the eloquence with which they are pleaded. I merely hold a) that it
    is not plain and obvious that the causes of action have no merit, and b) they are
    properly pleaded.

[4]

The responding parties argue that because the
    motion was brought under r. 21.01(1)(a) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, the motion judges decision perforce was
    a final determination of a legal question. They cite
Atlas Holdings v.
    Vratsidas
, 2012 ONSC 1375, at para. 12. But that case turned on a
    determination that finally disposed of a question of law, being whether the
    limitations defence was available to the defendants. The Superior Court had found
    that it was not available, and this court had agreed. Brown J., as he then was,
    then said, at para. 18, having lost on the question of law as to whether
    the plaintiffs' claims were statute-barred, the defendants cannot now rely on a
    limitation period defence.

[5]

The law is clear that not every unsuccessful
    motion under r. 21.01(1)(a) automatically gives rise to a right of appeal, only
    those that finally dispose of the issue raised by that defence, and thereby [deprive]
    the defendant of a substantive right which could be determinative of the entire
    action":
Ball v. Donais
(1993), 13 O.R. (3d) 322 (C.A.).

[6]

The order the moving parties seek to appeal did
    not finally determine any issues between the parties; the issues were all left
    to the trial judge. It is quintessentially an interlocutory order over which
    only the Divisional Court has jurisdiction under s. 19(1)(b) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43.

[7]

This conclusion is so obvious that this attempted
    appeal can be described as no more than an effort to buy time, part of what the
    motion judge, in his costs endorsement, termed the defendants Carthaginian
    litigation strategy. We agree with the moving parties that they are entitled
    to substantial indemnity costs and fix them in the amount of $10,000 inclusive
    of disbursements and taxes, payable by the responding parties forthwith.

P.
    Lauwers J.A.

Gary
    Trotter J.A.

B.
    Zarnett J.A.


