



COURT OF APPEAL FOR ONTARIO

CITATION: 1947755 Ontario Ltd. v. Caruso,
    2020 ONCA 616

DATE: 20200930

DOCKET: M51476 (C68167)

Juriansz, Hourigan and Thorburn
    JJ.A.

BETWEEN

1947755 Ontario Ltd.

Plaintiff

(Respondent)

(Moving Party)

and

Gaspare Caruso
, National Bank of Canada and Sukhjinder Bhangu

Defendants

(
Appellant
)

(
Responding Party
)

Adam Jarvis, for the moving party

Doug LaFramboise, for the responding
    party

Heard: September 28, 2020 by
    videoconference

REASONS FOR DECISION

[1]

This is a motion to quash the appeal of the appellant,
    Gaspare Caruso. Carusos Notice of Appeal indicates he seeks to appeal three
    terms of an order of the Superior Court of Justice dated February 12, 2020
    granting his motion to set aside the noting in default and default judgment
    obtained by the moving party, who is the plaintiff in the action below and
    respondent to the appeal. Caruso seeks to appeal the terms that he pay $52,000
    into court to the credit of the action, and that upon his failure to make the
    payment into court by April 13, 2020 the plaintiff may bring a motion to strike
    his defence if one is filed, note him in default and move for default judgment.
    Caruso also seeks to appeal the costs award made upon disposition of the motion
    below.

[2]

The first term that Caruso wishes to appeal,
    requiring payment of $52,000 into court, does not dispose of the dispute
    between the parties but allows that dispute to proceed to trial. It does not finally
    dispose of a substantive defence of the defendant.

[3]

The second term might result in the default
    judgment against Caruso, but that would be a result of his failure to comply with
    the first term rather than the order itself. As Sharpe J.A. explained at para.
    26 of
Inforica Inc. v. CGI Information Systems and Management Consultants
    Inc
.
, 2009 ONCA 642:

I recognize that failure to satisfy an order
    for security for costs may lead to a dismissal of the claim, but the sanction
    for non-compliance with an order cannot alter the nature of the order itself.
    Many procedural or interlocutory orders  for particulars, for production of
    documents, for the payment of costs ordered in interlocutory proceedings  may
    carry the ultimate sanction of dismissal of the non-complying partys claim.
    But if the claim is dismissed, the dismissal flows from the partys failure to
    comply with the interlocutory or procedural order, not from the order itself,
    and does not alter the interlocutory or procedural nature of the order that led
    to dismissal: see
Laurentian Plaza Corp. v. Martin
(1992), 1992
    CanLII 7561 (ON CA), 7 O.R. (3d) 111 (C.A.).

[4]

These terms are clearly not final orders of a
    judge of the Superior Court of Justice and no appeal lies from them to this
    court under s. 6 of the
C
ourts of Justice Act
, R.S.O. 1990, c.
    C.43.

[5]

As the award of costs was made in relation to
    interlocutory orders, it is also interlocutory: see
Destefano v. Gerry
,
2018 ONCA 701, at para. 4. No appeal lies to this court from the costs
    awarded on the motion.

[6]

Counsel for Caruso sought to invoke s. 6(2) of
    the
Courts of Justice Act
but did not identify any appeal in the same
    proceeding that has been taken to this court. In any event, this would not be a
    case for the application of s. 6(2).

[7]

The appeal is quashed. Costs in favour of the
    moving party are fixed in the amount of $6,500 inclusive of disbursements and
    applicable taxes.

R.G. Juriansz J.A.

C.W. Hourigan J.A.

J.A. Thorburn J.A.


