



COURT OF APPEAL FOR ONTARIO

CITATION: Mardonet v. BDO Canada LLP, 2015 ONCA 883

DATE: 20151211

DOCKET: M45501 (C60578)

Simmons, LaForme and Huscroft JJ.A.

BETWEEN

Ontario Psychological Association

Plaintiff

and

Charlotte (Carla)
    Mardonet
, Sarah Esaafi,
Gabrial Bensusan
,

2181420 Ontario Inc.
,
BDO Canada LLP
,
Vern E. Penner
and Dr. John Service

Defendants (
Appellants
)

Defendants (
Respondents
)

Paul D. Stern and Peter-Paul E. du Vernet, for the
    appellants

Andrew MacDonald, for the respondents

Heard: December 7, 2015

ENDORSEMENT

[1]

The issue before us is whether the motion judge's order
    quashing notices of examination is final or interlocutory.

[2]

The Ontario Psychological Association
    ("OPA") sued the appellants, Mardonet, Benusan and 2181420 Ontario
    Inc., to recover funds it alleges were misappropriated between 2003 and 2013 by
    its former employee, Mardonet. In the same action, the OPA alleges that the
    moving parties, BDO Canada LLP and Penner, were negligent in conducting audits
    of the OPA's financial statements during the same period and in failing to
    detect the misappropriation of funds.

[3]

After the action was commenced, the OPA
    moved for a
Mareva
injunction against the
    appellants. The appellants, in turn, served notices of examination on BDO and
    Penner.

[4]

The motion judge quashed the notices of
    examination, holding that the appellants failed to demonstrate that Penner
    could provide evidence relevant to the
Mareva
injunction motion and that, in all the circumstances, the notices of
    examination were an abuse of process.

[5]

The moving parties submit that the order under
    appeal is fundamentally interlocutory because it relates to an examination for
    the purposes of an interlocutory order.

[6]

In response, relying on

Smerchanski
    v. Lewis
(1980), 30 O.R. 2d 370 (C.A.), and other similar
    authorities, the appellants submit that the order is final. In
Smerchanski
, this court held that at an order quashing a summons to a non-party
    witness during a trial was final because the order finally disposed of the
    rights of the party who issued the summons and the non-party in the issue
    raised between them.

[7]

In this case, to date, the OPA has not required
    that BDO and Penner file a defence. Further, BDO and Penner are not responding
    parties to the
Mareva
injunction motion. The
    appellants submit that, in these circumstances, the moving parties are the
    effective equivalent of non-parties. The motion judge's order, which would
    otherwise be final, should not become interlocutory simply because of the
    happenstance that the OPA named BDO and Penner as parties to the action. In any
    event, the motion judge's order finally determines a significant issue: the
    question whether the moving parties can be examined  and their evidence
    obtained  in relation to the
Mareva
injunction.

[8]

We conclude that the order under appeal is
    interlocutory and that the appeal must be quashed. The key factor in this
    court's decision in
Smerchanski
was that the
    summons was issued to a non-party. That is not this case. The moving parties
    are parties to the action. The reasoning in
Smerchanski
does not apply. The order under appeal does not finally determine
    whether the moving parties can be examined in the action.

[9]

Further, the fact that the motion judges
    decision may finally determine whether the moving parties can be examined in
    relation to the
Mareva
injunction does not
    make the motion judges order final. The motion judges order does not terminate
    the underlying action or resolve a substantive claim or defence of one of the
    parties. To hold that the motion judges order is final because it determines
    whether parties to an action can be examined in relation to an interlocutory
    motion would effectively eliminate the distinction between interlocutory and
    final orders: see
Waldman v. Thomson Reuters Canada Limited
, 2015 ONCA 53, [2015] O.J. 395, at para 22.

[10]

The appeal is quashed without prejudice to the
    appellants' right to seek an extension of the time for applying for leave to
    the Divisional Court. Costs of the motion are to the moving parties on a
    partial indemnity scale fixed in the amount of $2,500 inclusive of
    disbursements and applicable taxes.

Janet Simmons J.A.

H.S. LaForme J.A.

Grant Huscroft J.A.


