



COURT OF APPEAL FOR ONTARIO

CITATION:
Pinder v. Biggar, 2021 ONCA 623

DATE: 20210917

DOCKET: M52551 (C69419)

Benotto, Brown and Harvison
Young JJ.A.

BETWEEN





Jack
Pinder, Victor Dusik and Innotech Safety Solutions Inc.

Creditors

(Respondents/Moving Parties)

and

Wayne Biggar

Debtor

(
Appellant/Responding Party
)



and

Hospodar Davies & Goold

Garnishee

(Respondent/Responding
Party)





Stephen Barbier and Ben Tustain, for
the moving parties

Douglas Spiller, for the responding
party Wayne Biggar

John Davies, for the responding party Hospodar
Davies & Goold
[1]

Heard: September 8, 2021 by video conference

REASONS FOR DECISION

[1]

The respondents, Jack Pinder, Victor Dusik and
Innotech Safety Solutions Inc., move to quash the appeal brought by the appellant,
Wayne Biggar, from the order made by Skarica J. dated April 13, 2021 following
a garnishment hearing (the Order) on the basis that the Order is
interlocutory, not final.

[2]

For the reasons that follow, we conclude that
the Order is interlocutory in nature and quash Mr. Biggars appeal.

[3]

By way of background, in 2018 Mr. Biggar commenced
an oppression action against the respondents, in which he obtained an
interlocutory injunction and orders to produce information. Mr. Biggar later alleged
that the respondents failed to comply with the production order and he moved
for contempt. The respondents brought a cross-motion to dissolve the
injunction. By order dated June 5, 2019 Perell J. dismissed Mr. Biggars
contempt motion and dissolved the injunction. He ordered costs against Mr. Biggar.

[4]

Mr. Biggar sought to appeal the order of Perell
J., first to this court and then to the Divisional Court. By the time all the
appellate dust had settled, the order of Perell J. was left standing,
undisturbed, and Mr. Biggar had been ordered to pay the respondents costs
totalling $128,500 ($110,000 by Perell J.; $7,500 by this court; and $11,000 by
the Divisional Court).

[5]

Mr. Biggar has exhausted his rights of appeal in
respect of the order of Perell J., the cost order of this court, and that
of the Divisional Court.

[6]

Mr. Biggars oppression action remains
outstanding, with no final determination having been made.

[7]

The respondents sought to enforce the cost
orders totalling $128,500 by garnishing part of the proceeds of the sale of Mr.
Biggars matrimonial home, which were being held in trust by a law firm pending
the determination of the matrimonial litigation between Mr. Biggar and his
wife. At the request of Mr. Biggar, the motion judge held a garnishment
hearing.

[8]

As the motion judge noted in his oral reasons
for the Order, Mr. Biggars wife did not oppose the respondents effort to
garnish as she was satisfied that sufficient funds would remain in trust to
satisfy the claims she is asserting against Mr. Biggar in their matrimonial
litigation. The motion judge relied on the statements made by Ms. Biggar at
para. 18 of her affidavit of December 11, 2020 where she deposed:

I was aware that I could oppose the
garnishment but based upon the amount being sought under the garnishment I
instructed my solicitors not to oppose as I felt there would be sufficient
funds remaining to address issues of equalization and costs in the matrimonial
proceedings.

[9]

Following a garnishment hearing, the motion
judge ordered $128,500 to be paid from the trust funds to the respondents in
satisfaction of Mr. Biggars cost obligations to them. In addition, he ordered
$5,600 to be paid for accrued postjudgment interest on the cost awards.

[10]

Mr. Biggar has appealed the Order to this court,
contending that it is a final order. The respondents move to quash the appeal
on the basis that the Order is interlocutory. Mr. Biggars wife did not oppose
the Order and she is not a party to Mr. Biggars appeal. The garnishee takes no
position on this motion.

[11]

The Order is an interlocutory one. It was made
within the oppression action Mr. Biggar commenced, not within the matrimonial
litigation. The Order did not finally dispose of the rights of the parties in
the oppression action, including any right to substantive relief sought by Mr.
Biggar:
Hendrickson v. Kallio
, [1932] O.R. 675 (C.A.), at p. 680;
Sun Life Assurance Co. v. York Ridge Developments Ltd.
(1998),
116 O.A.C. 103 (C.A.), at para. 13. Nor did it finally dispose of an issue
raised by a defence in the oppression action, as Mr. Biggar is the plaintiff:
Ball
v. Donais
(1993), 13 O.R. (3d) 322 (C.A.). Nor does the Order end a
discrete proceeding before the court, as the garnishment hearing was simply a
step in the process to enforce cost orders made in the oppression action:
Buck
Brothers Ltd. v. Frontenac Builders Ltd.
(1994), 19 O.R. (3d) 97 (C.A.).

[12]

The legal effect of the Order that Mr. Biggar
seeks to appeal is interlocutory in nature: the Order was made in furtherance
of the respondents efforts to enforce cost awards made against Mr. Biggar in
the oppression action and in respect of which Mr. Biggar has exhausted his
rights of appeal.

[13]

Accordingly, this court has no jurisdiction to
hear an appeal from the Order:
Courts of Justice Act
, R.S.O. 1990, c.
C.43, s. 6(1)(b) (
CJA
). Mr. Biggars appeal is quashed. Any avenue
of appeal that Mr. Biggar may have left in respect of the Order lies to the
Divisional Court pursuant to
CJA
s. 19(1)(b) and must be considered by
that court.

[14]

If the parties are unable to agree upon the
costs of this motion to quash and the motion to extend, they may deliver
written cost submissions, not exceeding three pages in length (excluding any
Bill of Costs), within 10 days of the date of these reasons.

M.L.
Benotto J.A.

David
Brown J.A.

Harvison
Young J.A.





[1]
John Davies appeared but made no written or oral submissions on
behalf of the responding party Hospodar Davies & Goold.



