



COURT OF APPEAL FOR ONTARIO

CITATION: Sennek v. Carleton Condominium Corporation No. 116,
    2017 ONCA 154

DATE: 20170221

DOCKET: M47455 (C63020)

Pardu J.A. (In Chambers)

BETWEEN

Manorama Sennek

Applicant (Appellant)

and

Carleton Condominium Corporation No. 116

Respondent

Manorama Sennek, acting in person

Allison J. Klymyshyn and James M. Butson, for the
    respondent

Heard: February 10, 2017

ENDORSEMENT

[1]

The moving party, Manorama Sennek, moves for an extension of time within
    which to perfect her appeal to this court. Underlying her proposed appeal is an
    application disputing condominium fees and liens filed by the respondent.

[2]

I am satisfied that she has provided a reasonable explanation for the
    delay. The delay is not long, and she indicates that she only requires a
    further two weeks to perfect the appeal. There is no prejudice to the
    respondent from the delay.

[3]

However, the respondent on the motion submits that the order from which
    the moving party wishes to appeal is interlocutory, that this court does not
    have jurisdiction to hear the appeal and that, accordingly, the justice of the
    case does not require an extension to perfect the appeal.

[4]

To determine to grant an extension, the court should take into account
    all the considerations that are relevant in the circumstances of the case,
    including:

(a)

Whether the moving party formed a bona fide intention to appeal within
    the relevant time period;

(b)

the length of, an explanation for, the delay in filing;

(c)

any prejudice to the responding parties, caused, perpetuated or
    exacerbated by the delay; and

(d)

the merits of the proposed appeal.

See
Enbridge Gas Distribution Inc. v. Froese
,
    2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. None of these factors is determinative.
    The governing principle is whether, on the facts, the justice of the case
    requires an extension: see
Rizzi v. Mavros
(2007), 85 O.R. (3d) 401
    (C.A.), at para. 17.

[5]

When the moving party brought her underlying application, the respondent
    raised concerns about the moving partys mental health and sought an order
    under s. 105 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, for a
    mental examination of the moving party by a health practitioner. The respondents
    original lien claim was only $763.14, but its legal costs by the time of the
    application were over $18,000.00. The respondent was concerned that a
    litigation guardian should be appointed for the moving party.

[6]

Kershman J. made an order on March 15, 2016 that an assessor, as defined
    in s. 1(1) of the
Substitute Decisions Act
, 1992, S.O. 1992, c. 30,
    and as chosen by the moving party, assess the moving partys mental condition
    and advise as to her mental competence to understand information related to
    litigation decisions and to appreciate the consequences of decisions on her
    part in litigation. The order went on to allow the respondent to name the
    assessor if the moving party failed to do so and that she was to bear the costs
    of the assessment.

[7]

The moving party sought leave to appeal from this order to the
    Divisional Court, which was refused by Beaudoin J. on August 2, 2016: see 2016
    ONSC 4818.

[8]

The moving party did not comply with the order and the respondent
    brought contempt proceedings. Roger J. indicated that he had a reasonable doubt
    about whether the moving partys breaches of the order of Kershman J. were
    deliberate and wilful because of the live issue over her capacity. Roger J.
    ordered the moving party to comply with Kershman J.s order and ordered her to
    appear before a specified health practitioner at a specified time and place so
    that her capacity could be assessed. He also ordered that should the Applicant
    fail to comply with and/or breach any term of this order, CCC 116 may bring a
    motion with notice to the Applicant and counsel for her mortgagee to dismiss
    this proceeding and the Small Claims Action, with CCC 116s costs.

[9]

The moving partys notice of appeal indicates that she appeals from the
    order of Judge Roger dated the 21st day of October 2016 (and the Order of
    Judge Kershman dated the 15th day of March 2015 incorporated by reference
    therein).

[10]

Section 6(1)(b) of the
Courts of Justice Act
provides that an
    appeal lies to the Court of Appeal from a final order of a judge of the Superior
    Court of Justice.

[11]

The distinction between a final and interlocutory order was expressed in
    the this courts decision in
Hendrickson v. Kallio
, [1932] O.R. 675
    (C.A.), at pp. 678:

The interlocutory order from which there is no appeal is an
    order which does not determine the real matter in dispute between the parties 
    the very subject matter of the litigation, but only some matter collateral. It
    may be final in the sense that it determines the very question raised by the
    application, but it is interlocutory if the merits of the case remain to be
    determined.

[12]

The court approved of the following test for determining whether an
    order is final or interlocutory, at p. 680:

It seems to me that the real test for determining this question
    ought to be this. Does the judgment or order as made finally dispose of the
    rights of the parties? It if does, then I think it ought to be treated as a
    final order, but if it does not it is then, in my opinion, an interlocutory
    order.

[13]

The characterization of an order as final or interlocutory is determined
    by the orders legal nature, rather than the particular circumstances of the
    plaintiff or defendant who is affected by the order. As Morden A.C.J.O.
    explained in
Laurentian Plaza Corp. v. Martin
(1992), 7 O.R. (3d) 111
    (C.A.), at p. 116:

The question of categorization which determines access to
    appellate review must be decided on the basis of the legal nature of the order
    and not on a case by case basis depending on the application of the order to
    the facts of a particular case. As I have indicated, jurisdictional rules
    should be as clear as possible and their application should not be beset with
    factual disputes which themselves may be protracted and difficult to resolve.

[14]

In circumstances analogous to those of the present case, this court has
    characterized an order requiring the plaintiff to appoint a litigation
    guardian, and requiring the litigation guardian to appoint counsel to represent
    the plaintiff, as interlocutory: see
Willmot v. Benton
, 2011 ONCA 104,
    11 C.P.C. (7th) 219. The order provided that if those steps were not taken
    within thirty days, the defendants could move without further notice to strike
    out the plaintiffs pleadings and seek dismissal of the action. The court wrote
    at para. 3 that the primary aspect of the order requiring the plaintiff to
    appoint a litigation guardian and counsel is procedural in nature and does not
    finally resolve an issue that goes to the merit or substance of this
    litigation.

[15]

A sanction for non-compliance of an interlocutory order does not alter
    the legal nature of the order. As Sharpe J.A. observed in
Inforica Inc. v.
    CGI Information Systems and Management Consultants Inc
.
, 2009 ONCA 642, 97 O.R. (3d) 161, at
    para. 26:

I recognize that failure to satisfy an order for security for
    costs may lead to a dismissal of the claim, but the sanction for non-compliance
    with an order cannot alter the nature of the order itself. Many procedural or
    interlocutory orders  for particulars, for production of documents, for the
    payment of costs ordered in interlocutory proceedings  may carry the ultimate
    sanction of dismissal of the non-complying partys claim. But if the claim is
    dismissed, the dismissal flows from the partys failure to comply with the
    interlocutory or procedural order, not from the order itself, and does not
    alter the interlocutory or procedural nature of the order that led to dismissal
    [Citation omitted.]

[16]

Based on these authorities, I am satisfied that the order of Roger J. is
    interlocutory and that an appeal from it properly lies to the Divisional Court.

[17]

Given that conclusion, the choice to be made is whether to extend the
    time to perfect this appeal, and leave the respondent to bring a motion to
    quash the appeal for lack of jurisdiction, or to refuse to grant an extension
    to perfect the appeal. Juriansz J.A. chose the latter course in
Henderson
    v. Henderson
, 2014 ONCA 571, 325 O.A.C. 138, at para. 8, but every
    decision as to whether the justice of the case requires an extension is
    highly fact specific.

[18]

In the end, given the enormous costs that have been incurred in this
    action, relative to the amounts in issue, I have concluded that it would not be
    proportionate or in the interests of either party for these proceedings to be
    prolonged or for further costs to be incurred when a decision quashing the
    appeal for want of jurisdiction seems inevitable. This appeal should have been
    brought to the Divisional Court, and any necessary motion to extend the time to
    appeal should have been brought before that court. The courts assessment of
    the justice of the case for the purpose of granting an extension in these
    circumstances must take into account the express inclusion in r. 1.04(1.1) of
    the
Rules of Civil Procedure
, R.R.O. Reg. 194, of the principle that
    the court shall make orders and give directions that are proportionate to the
    importance and complexity of the issues, and to the amount involved, in the
    proceeding. See also
Abrams v. Abrams
, 2010 ONSC 2703, 102 O.R. (3d)
    635, at paras. 66-70, leave to appeal to Div. Ct. refused, 2010 ONSC 4714 (Div.
    Ct.).

[19]

Accordingly, the motion to extend time is dismissed, without costs in
    all the circumstances of this case.

G. Pardu J.A.


