



COURT OF APPEAL FOR ONTARIO

CITATION: Density Group Limited v. HK Hotels LLC, 2017 ONCA
    205

DATE: 20170308

DOCKET: M47459 (C63108)

Hoy A.C.J.O., Gillese and Brown JJ.A.

BETWEEN

Density Group Limited

Respondent (Moving Party)

and

HK Hotels LLC
and Henry Kallan
, Princess
    Gates G.P. Inc. and Princess Gates Hotel Limited Partnership

Appellants (Responding Parties)

David S. Steinberg, for the moving party

David Boghosian, for the responding parties

Heard: March 7, 2017

ENDORSEMENT

[1]

The parties to this action attended at a 9:30
    a.m. Commercial List appointment before Newbould J. on November 18, 2016.  The
    purpose of the attendance was to schedule a motion to finalise a discovery plan
    in the action.  There were two issues on which the parties could not agree, one
    of which was whether Alexander Rovt should be produced to be examined for
    discovery on behalf of the defendant, Princess Gates Hotel Limited
    Partnership.  Density Group Limited (Density) wishes to examine Mr. Rovt. 
    The appellants resist on the basis that he is not a proper representative.

[2]

By order dated November 25, 2016 (the Order),
    Newbould J. ordered that Density is entitled to examine Mr. Rovt (and another)
    in Toronto.

[3]

The appellants filed a motion for leave to
    appeal the Order to the Divisional Court.  That motion has yet to be decided. 
    Shortly thereafter, they brought an appeal of the Order to this court, in which
    they ask that the Order be set aside as it relates to Mr. Rovt.

[4]

Density brings this motion to quash the appeal
    for lack of jurisdiction.  It contends that the order is interlocutory and,
    therefore, the pending motion for leave to appeal that is before the Divisional
    Court is the proper route of appeal.

[5]

The appellants resist the motion to quash on the
    basis that Mr. Rovt was ordered to be examined as a non-party and the Order,
    therefore, finally disposes of his right to refuse to attend and be examined.

[6]

We do not agree that the Order is made against
    Mr. Rovt, a non-party.  When the Order is considered together with the further
    order of December 20, 2016, of Newbould J., it is clear that the Order does not
    obligate Mr. Rovt to appear and be examined.  Rather, it requires the
    appellants, as the defendants to the action, to produce Mr. Rovt for
    examination. Should Mr. Rovts examination not take place as ordered, recourse
    is against the appellants and not against Mr. Rovt.

[7]

The Order is interlocutory because it merely
    decides which individual will be examined for discovery on behalf of a party to
    the action.

[8]

Accordingly, the motion is granted and the appeal is
    quashed, with costs to Density fixed at $5,000, all inclusive.

Alexandra Hoy A.C.J.O.

Eileen
    E. Gillese J.A.

David
    Brown J.A.


