



COURT OF APPEAL FOR ONTARIO

CITATION:
1476335
    Ontario Inc. v. Frezza, 2021 ONCA 732

DATE: 20211015

DOCKET: M52846 (C69611)

Brown J.A. (Motion
    Judge)

BETWEEN

1476335
    Ontario Inc., Aldo Rotondi, D'Andrea Management Inc.

and Rick D'Andrea

Plaintiffs

(Moving Parties/Appellants)

and

Brenda
    Frezza
,
Onorio Frezza
,
Elio Ascenzo Frezza
,
Jane Frezza


and Frezza
    Management Inc.

Defendants

(
Responding Parties/Respondents
)

Anthony J. Gabriele, for the moving parties

Jennifer McLeod, for the responding party, Brenda Frezza

No one appearing for the responding parties, Onorio
    Frezza, Elio Ascenzo Frezza, and Jane Frezza

Heard: October 14, 2021 by video conference

ENDORSEMENT

[1]

In 2019 the moving parties,
1476335
    Ontario Inc., Aldo Rotondi, D'Andrea Management Inc. and Rick D'Andrea,
    commenced an action that seeks,
inter alia
, declarations that the 2003
    transfer of what are now two Bonnie Doon Road properties (the Properties) to
    the respondent, Brenda Frezza, was a fraudulent conveyance and that Ms. Frezza
    holds the former transferors interest in the Properties on a constructive
    trust for the moving parties. The action also seeks an order for the issuance
    of a certificate of pending litigation (CPL) for registration against the
    Properties.

[2]

By order dated May 28, 2021, Aston J. dismissed the moving
    parties motion for a CPL (the Order).

[3]

The moving parties have appealed the Order to two different
    courts.

[4]

On the one hand, they have commenced a motion for leave to appeal
    the Order to the Divisional Court. At the same time, they filed a notice of
    appeal with this court. The Divisional Court has put the leave motion on hold
    until this court determines whether the Order is final or interlocutory.

[5]

In this court the moving parties have brought two motions. The
    first seeks, in effect, a determination that the Order is final in nature and,
    therefore, an appeal lies to this court (the Jurisdiction Motion). The
    Jurisdiction Motion is scheduled to be heard at a later date (December 10,
    2021) by a panel.

[6]

In the meantime, the moving parties have brought this motion
    before a single judge seeking, pursuant to s. 134(2) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, an interim order granting them
    leave to issue and register a CPL against the Properties.

[7]

The respondent seeks an adjournment of this motion on the basis
    that the motion materials were not served on it in a timely manner.

[8]

I need not address the merits of that request because I have
    determined that I must adjourn the motion in any event to the panel hearing the
    Jurisdiction Motion.

[9]

Section 134(2) of the
Courts of Justice Act
states: On motion,
    a court to which a motion for leave to appeal is made or to which an appeal is
    taken may make any interim order that is considered just to prevent prejudice
    to a party
pending the appeal
 (emphasis added). As
    I interpret this section, it authorizes an appellate court to make an interim
    order where an appeal lies to that court. Since the powers of this court derive
    from statute, I have strong reservations that I possess the power to make an
    order under s. 134(2) where there is a dispute as to whether this court has
    jurisdiction to entertain an appeal from the Order. Were I to entertain the
    moving parties request for the issuance of a CPL, I would impliedly be
    determining the very question that will be before the panel: namely, whether the
    Order is final in nature and an appeal properly lies to this court. I am not
    prepared to determine, in effect, the very question the moving parties have
    placed before a panel.

[10]

At
    the same time, there is no doubt that Ms. Frezza is actively trying to sell the
    two Properties. While I do not think that I have the jurisdiction to make an
    order restraining her given the outstanding final/interlocutory issue, as a
    practical matter I think the interests of both parties can be fairly balanced
    by advancing the date for the hearing of the Jurisdiction Motion and adjourning
    this motion to be heard at the same time as the Jurisdiction Motion.

[11]

A
    panel is available on November 5, 2021 to hear both motions. Accordingly, I
    adjourn this motion to that date and direct that the Jurisdiction Motion be
    rescheduled for hearing on November 5 together with this motion. That date is
    peremptory to both parties. A total of 30 minutes is allocated for oral argument
    on the combined motions  i.e., 15 minutes for each party.

[12]

I
    make the following directions regarding the materials for this adjourned motion
    and the Jurisdiction Motion to be heard on November 5, 2021:

(i)

The respondents shall serve and file all responding materials for both
    motions, including factums and books of authorities, no later than Wednesday,
    October 27, 2021; and

(ii)

The
    moving parties shall serve and file any reply materials for both motions no
    later than Monday, November 1, 2021.

[13]

Evidently
    the date for the perfection of this appeal expires on October 15, 2021. I
    hereby extend the date for perfection until the disposition of both motions by
    the panel or such further date as may be set by the court.

[14]

The
    costs of todays attendance are fixed in the amount of $250, inclusive of
    disbursements and applicable taxes, with the determination of who pays whom
    left to the panel on November 5, 2021.

[15]

I
    conclude by observing that one of the great on-going failures of the Ontario
    civil justice system is the confusion entrenched in the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43 concerning appeal routes from orders made by
    judges of the Superior Court of Justice: Does the appeal lie with leave to the
    Divisional Court or as of right to this court? Such confusion inflicts
    unnecessary legal costs on parties, delays the resolution of appeals on their
    merits and, as this case illustrates, sows uncertainty about how a party can
    attempt to protect its rights pending an appeal.

[16]

There
    is absolutely no excuse for such confusion to continue. Simple bright line
    appeal route solutions are available. I would hope that at some point in the
    near future the Ontario Legislature will awake and address this
    far-too-long-outstanding stain on our civil justice system. In my respectful
    view, the Legislature needs to enact legislation that creates an unambiguous
    bright line explaining when an appeal lies to the Divisional Court and when
    it lies to the Court of Appeal for Ontario. The current final/interlocutory
    dividing line is an expensive, time-wasting anachronism. Implementing a bright
    line solution is not a hard task: all it needs is a bit of creativity,
    political will, and concern for the health of our ailing civil justice system.

David Brown J.A.


