



COURT OF APPEAL FOR ONTARIO

CITATION:
1386444 Ontario Inc. v. 2331738 Ontario Ltd., 2021 ONCA 845

DATE: 20211123

DOCKET: C69166

Gillese, Trotter and Nordheimer
    JJ.A.

BETWEEN

1386444 Ontario Inc. and
    Surinder Singh Binepal

Applicants (Respondents)

and

2331738 Ontario Ltd. operating
    as Century Cabinet Doors Inc., Harpal Singh Bhambra, Amanpreet Kaur Bhamra, and
    Peel Condominium Corporation No. 473

Respondents (Appellants)

Ajay Duggal and Maneesh Mehta, for the
    appellants

James S. G. Macdonald and Melisa
    Rupoli, for the respondents

Heard: November 19, 2021

On appeal from the judgments of Justice
    Heather A. McGee of the Superior Court of Justice, dated October 21, 2020, and February
    22, 2021.

APPEAL BOOK ENDORSEMENT

[1]

The appellants seek to appeal two judgments made in this proceeding. The
    first judgment, dated October 21, 2020, declared that the Appellants operation
    of their cabinet door manufacturing business constituted a significant and
    unreasonable nuisance that interfered with the Respondents use and enjoyment
    of their condominium (the October 2020 Judgment). In the second judgment,
    dated February 22, 2021 (the February 2021 Judgment), the court granted a
    permanent injunction restraining the Appellants from operating any noise
    causing machinery in their condominiums between 9 a.m. and 5 p.m., Monday
    through Friday excluding statutory holidays.

[2]

This court does not have jurisdiction to hear that part of the appeal in
    which the Appellants challenge the October 2020 Judgment because of the
    Appellants prior actions in respect of that judgment. The Appellants filed an
    appeal of the October 2020 Judgment on November 2, 2020 (the First Appeal).
    The First Appeal was dismissed for delay by order of the Registrar of this
    court dated January 20th, 2021 (the Dismissal Order). At the oral hearing of
    this appeal, the Appellants advised that, in fact, they abandoned the First
    Appeal shortly before the Dismissal Order was made. Be that as it may, the
    Appellants First Appeal has been dismissed and, consequently, this court does
    not have jurisdiction to adjudicate upon it again. To permit the Appellants,
    without more, to challenge the October 2020 Judgment through this appeal would
    be an impermissible collateral attack on that judgment.

[3]

However, as the Appellants made clear at the oral hearing of this
    appeal, they wish to appeal both the October 2020 Judgment and the February
    2021 Judgment.

[4]

Assuming that the Appellants are correct in their submission that this
    court has the power to set aside the Dismissal Order and/or their earlier
    abandonment, the court declines to exercise that power. The
Rules of Civil Procedure

set out
    a process that is to be followed should a party wish to set aside a dismissal order.
    That process is designed to ensure fairness to both sides of this dispute.
    Further, such a process must be followed so that the court can fairly hear and
    decide whether to set aside the Dismissal Order.

[5]

Consequently, as we declared at the oral hearing of this appeal, this
    appeal is adjourned to a date to be fixed by the courts Appeal Scheduling Unit,
    such date to be no earlier than 60 days from the date of this endorsement. The
    60-day period gives the Appellants the opportunity to bring a motion to set
    aside the Dismissal Order, should they so decide. Regardless of whether the
    Appellants make such a motion and, if they do, regardless of whether they are
    successful on that motion, the appeal shall be rescheduled because that part of
    it which relates to the February 2021 Judgment remains to be decided.

[6]

Costs thrown away today are awarded to the Respondents, fixed at $1,600,
    all inclusive.


