



COURT OF APPEAL FOR ONTARIO

CITATION: Durbin v. Brant, 2017 ONCA 463

DATE: 20170605

DOCKET: C62910

Cronk, Blair and van Rensburg JJ.A.

BETWEEN

Stephen Durbin

Applicant

(Respondent)

and

George F. Brant

Respondent

(Appellant)

APPLICATION UNDER
section 9 and section 11 of the
Solicitors Act
, R.S.O. 1990, c. S.15,
    and rule 14.05(2) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194.

George Brant, in person

Shoshana Bentley-Jacobs, for the respondent

Heard and released orally: May 31, 2017

On appeal from the order of Justice John R. Sproat of the
    Superior Court of Justice, dated September 30, 2016.

REASONS FOR DECISION


[1]

The appellant seeks to appeal from the application judges order
    referring his account dated February 28, 2016 for assessment under the
Solicitors
    Act
, R.S.O. 1990, c. S.15.

[2]

At the outset of oral argument, we invited the parties submissions on
    whether this court has jurisdiction to hear the proposed appeal.  Having
    received and considered those submissions, we are of the view that the order in
    question (mistakenly called a judgment in the materials below) is
    interlocutory rather than final in nature.  Consequently, any appeal therefrom
    lies to the Divisional Court, with leave, under s. 19(1)(b) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43.

[3]

We reach this conclusion because the order at issue does not determine
    the real matter in dispute between the parties.  Rather, the order that the
    contested account be referred for assessment concerns a preliminary procedural
    matter.  The assessment process has yet to run its course.

[4]

We appreciate that the appellant, supported by the respondent, relies on
    this courts decisions in
Ball v. Donais
(1993), 13 O.R. (3d) 322 and
Buck
    Brothers Ltd. v. Frontenac Builders Ltd.
(1994), 19 O.R. (3d) 97 and
    related cases to argue that the order is final in nature because, he says, he
    is now precluded by reason of the order from arguing, on any basis, that the
    account at issue is not subject to referral for assessment under ss. 9 and 11
    of the
Solicitors Act
.  The order therefore, he submits, is final in
    nature and not interlocutory.

[5]

We disagree.

[6]

The appellant has not been deprived of a substantive right because he is
    not precluded from defending the quantum of his account.  That is the real
    matter at issue between the parties and it has yet to be determined.

[7]

In our view, therefore, the order is interlocutory and this court lacks
    jurisdiction to entertain the proposed appeal.

[8]

Accordingly, the appeal is quashed.  As both parties sought to have the
    appeal proceed in this court, this is not an appropriate case for costs thrown
    away of todays attendance.

E.A. Cronk J.A.

R.A. Blair J.A.

K. van Rensburg J.A.


