



COURT OF APPEAL FOR ONTARIO

CITATION: Cowan v. General Filters Inc., 2017 ONCA 456

DATE: 20170602

DOCKET: C62516

Lauwers, Hourigan and Benotto JJ.A.

BETWEEN

James Cowan and Shauna Cowan

Plaintiffs (Respondents)

and

General Filters Inc.,
Canadian General Filters Limited
, Lippert & Wright Fuels Ltd., also known as Dave Lippert Fuels Ltd,
    K & S Climate Control, Oil Tech Plus Ltd., and John Doe Company, and The Dominion
    of Canada
General Insurance Company

Defendants/
Third Party Plaintiff
(Respondents)

and

Dana Canada Inc. Filter Division

Third Party Defendant (Appellant)

Christopher A. Chekan, for the appellant

Edward Key and Richard K. MacGregor, for the plaintiffs/respondents

Heard and released orally: May 19, 2017

On appeal from the order of Justice James Sloan of the Superior
    Court of Justice, dated July 26, 2016.

REASONS FOR DECISION

[1]

The motion judge granted the plaintiffs motion
    to quash four subpoenas addressed to the following individuals: Rene
    Caskanette, Bob Caskanette, Peter Johnston, and Alfred Burgess.

[2]

The evidence sought by the appellant from these
    witnesses was in aid of the appellants efforts to have the administrative
    dismissal of this action maintained.

[3]

The motion judge asked the question before him
    in the following terms:

What evidence would any of the witnesses have,
    that by the passage of time from the dismissal of the action (March 24, 2016)
    or the set down date of December 31, 2015 to the service of the motion to
    reinstate (April 8, 2016), would assist Dana Canada in demonstrating that there
    is now significant prejudice to them in presenting their case to trial.

[4]

He answered this question in the following
    terms:

I therefore find it extremely unlikely that
    the Caskanette engineers would be able to provide Dana Canada with any evidence
    whatsoever that would assist them in showing significant prejudice.

[5]

The jurisdictional question before us is whether
    the order quashing the subpoenas was interlocutory or final. Based on the
    authority of this court in
Ambrose v. Zuppardi
,
    2013 ONCA 768, 368 D.L.R. (4th) 749, we conclude that the order was
    interlocutory, not final and that the route of appeal is through the Divisional
    Court with leave under the
Courts of Justice Act
, R.S.O 1990,
    c. C.43
.

[6]

We therefore quash the appeal.

[7]

Costs are fixed in the amount of $7,500 all inclusive,
    payable to the respondents.

P. Lauwers J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


