COURT OF APPEAL FOR ONTARIO

CITATION:
Husid v. Daviau, 2012 ONCA 469

DATE: 20120629

DOCKET: M41402 (C55015)

Gillese J.A. (In Chambers)

BETWEEN

Uri Landman Husid

Applicant/Appellant
    on Appeal (Moving Party)

and

Helene Marie Therese Daviau

Respondent/Respondent
    on Appeal (Responding Party)

Jeffrey Wilson and Joanna Harris, for the moving party

Phyllis Brodkin and Serena Lein, for the responding
    party

Heard: June 28, 2012

On motion for access pursuant to ss. 21 and 28 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12, on the appeal from the judgment of
    Justice Craig Perkins of the Superior Court of Justice, dated January 23, 2012.

Gillese
    J.A.:

[1]

The parties child will turn six years old on August 19, 2012.  Her
    father, Mr. Landman Husid, brings a motion in which he seeks, among other
    things, unsupervised and overnight access with the child from August 19 to
    August 22, 2012.

[2]

Ms. Daviau is the childs mother.  She opposes the motion.

[3]

For the reasons that follow, I would dismiss the motion.

Background in Brief

[4]

The appellant father lives in Lima, Peru, which was the parties former
    home and where the child was born and lived until September 2010, when she was
    taken by her mother to Canada.  The child and her mother have continued to live
    in Canada.  Mr. Landman Husid has a temporary order for custody of the child in
    Peru.

[5]

Mr. Landman Husid brought an application in Ontario under the
Hague
    Convention on the Civil Aspects of International Child Abduction
, 25
    October 1980, Can. T.S. 1983, No. 35 (
Hague Convention
) in which he
    asked that the child be returned to Peru.

[6]

On May 27, 2011, Justice Brownstone of the Ontario Court of Justice
    dismissed the application (the May 27, 2011 order) and allowed the child and
    her mother to remain in Canada.

[7]

In his reasons for decision, Brownstone J. found that the child had been
    wrongfully retained in Canada within the meaning of article 3 of the
Hague
    Convention
.  However, he concluded that Ms. Daviau had met the onerous
    burden under article 13(b) of the
Hague Convention
of establishing
    that if the child were returned to Peru, there was a grave risk of physical and
    psychological harm and that she would be placed in an intolerable situation.

[8]

In the May 27, 2011 order, Mr. Landman Husid was given interim
    supervised access.

[9]

Mr. Landman Husid appealed the May 27, 2011 order to the Superior Court
    of Justice.

[10]

On
    August 30, 2011, by the consent order of Czutrin J., Mr. Landman Husid was
    granted temporary access to the child, via Skype, three times each week,
    pursuant to the temporary access order of the Superior Court of Justice on July
    14, 2011.

[11]

The
    appeal of the May 27, 2011 order was heard by way of a trial before Perkins J.
    in November 2011.  The trial lasted seven days.

[12]

By
    order dated January 23, 2012, Perkins J. dismissed the appeal (the order under
    appeal).  Like Brownstone J., he did so on the basis of article 13(b) of the
Hague
    Convention
.  He gave lengthy, thoughtful reasons for decision.

[13]

Mr.
    Landman Husid has appealed the order of Justice Perkins.  The appeal has been
    expedited and is scheduled to be heard on August 22, 2012.

The Motion

[14]

The
    matter before the court today is Mr. Landman Husids motion in which he seeks a
    court order providing that:

1.

Pending appeal, he shall continue to have skype access to the child during
    which the mother is not to be present in the room;

2.

He shall have an unsupervised summer visit with the child on August 19,
    2012, and overnight from August 20 to August 22, 2012;

3.

The pick-up and drop-off locations shall be at a public place convenient
    to both parties;

4.

The mother shall provide information to the father by email on a monthly
    basis about the childs health, education and welfare;

5.

The mother shall provide consent to the release of information from the
    childs school, medical and other professionals;

6.

He shall receive the costs of the motion.

[15]

After
    hearing the parties orally, I advised that the motion was dismissed, with
    reasons to follow.  These are the promised reasons.

Analysis

Jurisdiction of this Court to Hear the Motion

[16]

Mr.
    Wilson, the appellants counsel, brought this motion pursuant to ss. 21 and 28
    of the
Childrens Law Reform Act
,
R.S.O. 1990, c. C.12

(
CLRA
).  Section 21 of the
CLRA
gives a parent the right to apply for an order respecting access.  It reads as
    follows:

21.
(1)
A
    parent of a child or any other person may apply to a court for an order
    respecting custody of or access to the child or determining any aspect of the
    incidents of custody of the child.

Section 28 of the
CLRA
sets out the powers of
    the court on an application made under s. 21.  It reads as follows:

28.
(1)
The
    court to which an application is made under section 21,

(a) by order may grant the custody of or access to
    the child to one or more persons;

(b) by order may determine any aspect of the
    incidents of the right to custody or access; and

(c) may make such additional order as the court
    considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or
    location of contact or communication between any of the parties, or between a
    party and the child,

(ii) prohibiting a party or other person from
    engaging in specified conduct in the presence of the child or at any time when
    the person is responsible for the care of the child,

(iii) prohibiting a party from changing the
    childs residence, school or day care facility without the consent of another
    party or an order of the court,

(iv) prohibiting a party from removing the child
    from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a
    person or body specified by the court, of the childs passport, the childs
    health card within the meaning of the
Health Insurance Act
or any
    other document relating to the child that the court may specify,

(vi) requiring a party to give information or to
    consent to the release of information respecting the health, education and
    welfare of the child to another party or other person specified by the court,
    or

(vii) requiring a party to facilitate
    communication by the child with another party or other person specified by the
    court in a manner that is appropriate for the child.

[17]

Mr. Wilson submits that this court has the power to grant the relief
    sought pursuant to s. 134(2) of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43.  Section 134(2) reads as follows:

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.

[18]

However,
    s. 18(1) of the
CLRA
defines court, for the purpose of custody, access
    and guardianship matters, to mean the Ontario Court of Justice, the Family
    Court or the Superior Court of Justice.

[19]

In
    accordance with s. 18(1), therefore, the motion should have been taken to the
    court below.

[20]

Mr.
    Wilson argues that he could not make the motion in the court below because that
    would amount to attorning to the courts jurisdiction, the very matter he
    contests by way of the main appeal.  I do not accept this argument.  There are
    a number of access orders in place already.  I understand that they were made
    without prejudice to the fathers right to maintain that he did not attorn to
    the courts jurisdiction.  If the existing access orders could be made on that
    basis, I see no reason why the present motion could not also be made on the
    same basis.

[21]

Accordingly,
    I do not accept that this court has jurisdiction on this motion.

[22]

I
    am reinforced in this view by two considerations.

[23]

First,
    as part of the order under appeal, Perkins J. expressly ordered that the
    mothers claim for custody and access should proceed.  He directed that if the
    parties were unable to agree on how to proceed on the matter, a motion for
    directions should be booked, before him if possible.  The order under appeal
    expressly provides a method by which the parties were to deal with custody and
    access.  This aspect of the order is not under appeal.  Its terms govern.

[24]

Second, since
    there is no notice of motion to appeal the temporary access orders that are in
    place, it appears to me that the motion before the court is a collateral attack
    on the access orders already in place.

The Merits

[25]

Alternatively,
    if this court does have jurisdiction, I would dismiss the motion.

[26]

In
    my view, if the appellant is given unsupervised access to the child, there is a
    very real risk he will remove the child to Peru.  My view is based primarily on
    the reasons for decision of Perkins J., which I will not recite.  Suffice to
    say that they include findings that the appellant has taken the law in his own
    hands on a number of occasions and the last time the child was with her father
    on an unsupervised visit in Peru in January 2010, he refused to return the
    child to the mother despite a court order to that effect.  Furthermore, there
    are the findings relating to family violence.

[27]

The
    courts below had good reason to order that access be supervised.  I am not
    persuaded that they erred; I would not disturb the orders.

DISPOSITION

[28]

Accordingly,
    the motion is dismissed.  The parties have agreed that there shall be no order
    as to costs of the motion.

Released: June 29, 2012 (E.E.G.)

E.E. Gillese
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: J.N. v.
    Durham Regional Police Service, 2012 ONCA 428

DATE: 20120621

DOCKET: C53887

Weiler, Blair and Rouleau JJ.A.

BETWEEN

J.N.

Applicant
    (Respondent)

and

The Durham Regional Police Service and The
    Durham Regional Police Services Board

Respondents (Appellants)

David Migicovsky, for the appellants

Jonathan Shime and Megan Schwartzentruber, for the
    respondent

Charlotte Kanya-Forstner, Janet E. Minor and Sara
    Weinrib, for the intervener Attorney General of Ontario

David Rose and Stacey Nichols, for the intervener
    Canadian Civil Liberties Association

Heard: May 15, 2012

On appeal from the judgment of Justice J.P.L. McDermot of
    the Superior Court of Justice dated May 10, 2011, with reasons reported at 2011
    ONSC 2892, 106 O.R. (3d) 346.

BY THE COURT:

Facts

Background

[1]

The respondent J.N. was required to obtain a
    police records check as part of an application for a media relations position
    with the Durham Catholic District School Board. J.N. submitted a Criminal
    Information Request (CIR), which included a Vulnerable Persons Search, to the
    Durham Regional Police Service (the DRPS).

[2]

The CIR form made it clear that the results of
    the search would include all charges dealt with in court, including those
    where no convictions have been registered.  J.N. was surprised to learn when
    the results were received, however, that the CIR included a reference to a
    withdrawn assault charge that she had faced several years earlier.  The charge had
    arisen in the context of a family dispute involving J.N. and her siblings respecting
    the care of their father, with whom J.N. had been living and for whom she had
    been providing care-giving services.  The siblings alleged that she had
    assaulted their father by striking him on the leg.  J.N. denied the allegation,
    and on September 25, 2008, the charge was withdrawn at the request of the
    Crown, presumably for lack of evidence to support it.

Procedural Steps Taken by J.N.

[3]

When J.N. received the CIR she took a number of
    steps to attempt to have the reference to the withdrawn charge removed from
    it.

[4]

First, both she and her counsel wrote to the DRPS,
    requesting that reference to the withdrawn charge be removed.  Unlike a number
    of other police services in Ontario,
[1]
the DRPS had an informal process in place by which this type of request would
    be received and considered by an
ad hoc
Committee.  The process was governed by a Directive that permitted
    individuals to appeal the contents of their CIR and to make written submissions
    to the Committee, which would then make a decision in writing.  The Directive
    provided that there was no further appeal from a decision of the Committee.

[5]

J.N.s request was denied.

[6]

J.N. was unaware of the existence of the
    Directive when she made her original submissions.  The DRPS letter refusing the
    request for review referred to the Directive but did not include a copy of it.
    Her counsel therefore wrote to the DRPS on May 19, 2009, asking for a copy of
    the Directive and requesting a reconsideration of the decision not to remove
    the reference to the withdrawn charge from J.N.s CIR.  In these submissions,
    counsel relied heavily on the decision at first instance in
Tadros v. Peel Regional Police Service
(2007), 87 O.R. (3d) 563 (S.C.).  In that decision, the Superior Court had granted
    an injunction prohibiting the Peel Regional Police Service from disclosing
    information regarding withdrawn charges relating to Mr. Tadros.

[7]

Although the Directive did not provide for an
    appeal, the DRPS treated J.N.s request for a reconsideration as a complaint to
    the Chief of Police under the former s. 61 of the
Police
    Services Act,
R.S.O. 1990, c. P.15, relating to
    the policies of or services provided by the DRPS.  On July 8, 2009, the Chief
    responded through his delegate, rejecting the appeal and providing written
    reasons for doing so.  In those reasons the delegate noted that this Court had
    reversed the judge of first instance in the
Tadros
case: see
Tadros v. Peel Regional
    Police
, 2009 ONCA 442, 97 O.R. (3d) 212.

[8]

On August 14, 2009, J.N. requested that the
    Chiefs decision be reviewed by the Durham Regional Police Services Board,
    pursuant to the appeal procedures provided in the
Police
    Services Act
.  The Board issued a decision on
    September 15, 2009, taking the position that its power to review was of a
    broader policy and service nature, and that it could not interfere with the
    results of the DRPS decision because the inclusion of the information on J.N.s
    CIR raised issues of an operational rather than a policy nature.  The Board indicated
    as well that it had reviewed the process for handling CIR requests and was
    satisfied that it struck a reasonable balance between protecting the vulnerable
    and respecting the privacy of applicants.

J.N.s Response

[9]

J.N. did not seek judicial review of any of
    these decisions.  Instead, she brought an application before a judge of the
    Superior Court on February 24, 2010, seeking an order in the form of an
    equitable remedy requiring that the reference to the withdrawn charge be
    removed from her CIR.  She argued that the DRPS and the Board had violated a
    common law duty of fairness owed to her as well as her rights under s. 7 of the
Canadian Charter of Rights and Freedoms
by failing to provide an adequate process and effective remedy to
    remove the withdrawn charge from her CIR.

The Application Below

[10]

The application judge quashed the decision of
    the DRPS refusing to remove the reference to the withdrawn assault charge.  In
    addition, he ordered that J.N.s CIR, and all of her future CIRs, be issued
    without reference to the withdrawn charge.

[11]

The DRPS has since complied with that order.

Analysis

[12]

The appellants submit that the appeal must be
    allowed because the application judge did not have jurisdiction to quash the
    decision of the
ad hoc
Committee, the Chief of Police, or the Board.  They also argue that
    the application judge made errors in his analysis of the statutory scheme and
    duty of procedural fairness, as well as his determination that the respondents
    right to security of the person under s. 7 of the
Charter
was infringed.  We agree that the appeal must be
    allowed on the jurisdictional ground, and will not deal, therefore, with the
    appellants additional arguments, except to the extent necessary to understand
    the context for the jurisdictional decision.

[13]

In the court below, J.N. raised a number of
    complaints about the process that evolved before the DRPS.  Among them are the
    following: she did not have a copy of the Directive when she made her first
    request because no copy was available on the police service website and she did
    not know it existed; when she did obtain a copy it did not contain any
    guidelines as to the criteria to be considered by the
ad hoc
Committee upon receipt of a
    request to remove an entry in a CIR; there was nothing in the Directive to affirm
    that the Committee had taken into account the various factors that the DRPS
    affidavit indicated were to be taken into account by the Committee; she had a
    legitimate expectation that there would be a fair process in existence whereby
    discretion could be exercised to remove the reference of a non-conviction
    registration and no such process affording her procedural fairness and
    protection existed; she was never given the option of a public hearing under
    the
Police Services Act
; the Chief of Police did not follow the proper procedure under the
    Act, did not give proper reasons, and misconstrued the decision of this Court
    in
Tadros
which, while
    it dealt with the right of the police to retain non-conviction information and
    to distribute it with the consent of the applicant, did not deal with whether
    there must be a process for seeking removal of a non-conviction registration.

[14]

In addition, J.N. contended that her rights
    under both ss.7 and 11(d) of the
Charter
 the rights to liberty and security of the person, and the right
    to be presumed innocent until proven guilty, respectively  were violated.

[15]

Whether the legal effect of the
Tadros
decision, and the principles
    underlying it, mean that the law requires police services to put in place a
    process whereby an applicant may seek to have a non-conviction entry removed
    from his or her CIR and, if so, what the nature of the process is to be, are
    important questions that a court may well have to determine at some point.
    Respectfully, however, the application judge did not have the jurisdiction to
    address them in the forum in which they were presented to him.

[16]

In Ontario, the procedure for attacking
    decisions of public administrative bodies is by way of judicial review under
    the
Judicial Review Procedure Act
, R.S.O. 1990, c. J.1.  Under ss. 6 and 7 of that Act, in the
    absence of urgency (not a factor here), an application for judicial review is
    to be made to the Divisional Court.  The application judge here was not sitting
    as a judge of the Divisional Court; he was hearing an application purporting to
    be brought under rule 14.05(3)(g.1) of the
Rules of
    Civil Procedure
 a proceeding by application
    where the relief claimed is for a remedy under the
Canadian
    Charter of Rights and Freedoms
.  In our view, the rule
    14.05 application procedure was not open to J.N. in these circumstances because
    the substance of her claim is for judicial review of the administrative
    decision of a public statutory body: see
Bard v.
    Longevity Acrylics Inc
., [2004] O.J. No. 3597 (C.A.);
Canada Post Corp. v. C.U.P.W.
(1989), 70 O.R. (2d) 394 (H.C.J.), at pp. 397-398;
Koumoudouros v. Municipality of Metropolitan Toronto
(1982), 37 O.R. (2d) (H.C.J.), at p. 659. A court must have
    jurisdiction independent of rule 14.05 before it can consider the appropriate
    vehicle for bringing the matter forward, whether it be by action or application:
    see
Canada Post Corp
.,
    at p. 397;
Halpern v. Toronto (City) Clerk
, [2000] O.J. No. 3213 (S.C.), at para. 10.

[17]

Counsel for J.N. candidly concedes that if he
    were seeking to attack the decision of the Chief of Police or of the Board
    under the
Police Services Act
, he would have been required to do so by way of application for
    judicial review before the Divisional Court.  He argues that he was not
    launching such an attack, however; instead, he was seeking to set aside the
    decision of the
ad hoc
Committee, a decision of a non-statutory body.

[18]

There are several problems with this
    submission.  First, we do not accept that the
ad
    hoc
Committee is a non-statutory body.  It may not
    be a body created by statute or regulation itself; but it is an informal
    decision-making body created by the DRPS, which is a statutory body, and its
    decisions are those of that statutory body.  The decision affects J.N.s legal
    rights and privileges with respect to the retention of her non-conviction
    information by the police services and in that sense involves the exercise of a
    statutory power of decision by the
ad hoc
Committee:
Judicial Review Procedure
    Act
, at s. 1.  Secondly, even if the
ad hoc
Committee is not a statutory
    body, its decisions are those of a public administrative authority affecting
    J.N.s rights, privileges and interests, and they are therefore subject to the
    common law principles of procedural fairness: see
Cardinal
    v. Director of Kent Institution
, [1985] 2 S.C.R.
    643, at p. 653;
Knight v. Indian Head School
    Divisions No.19
, [1990] 1 S.C.R. 653, at p. 668-69.

[19]

In either of these scenarios, the decision is in
    essence an administrative decision of the type that is subject to judicial review.

[20]

In addition, however  those scenarios aside  it
    seems to us that the decision of the
ad hoc
Committee has become moot.  It has been overtaken by, and subsumed
    in, the process under the
Police Services Act
and the decisions of the Chief of Police and the Board in that
    regard.  As noted, it is conceded that these decisions must be the subject of
    judicial review.

[21]

That J.N. sought to raise
Charter
issues in support of her
    arguments that the decisions should be quashed does not alter these factors.  Many
    administrative decisions invoke
Charter
considerations, which are dealt with in the context of the judicial
    review process.  In Ontario, there is a legislative scheme for the review of
    administrative decisions, and it is not permissible to circumvent that process
    by dressing up what is, in substance, a review of a decision of an
    administrative tribunal as a rule 14.05 application. In essence, that is what
    occurred here.

[22]

In fairness to J.N., and to the application
    judge, the jurisdictional question that we have determined is dispositive of
    the appeal was not raised by the appellants before the application judge.  J.N.
    sought to found the courts jurisdiction in s. 96(3) of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43 and the inherent jurisdiction of the court.  Section 96(3) states:

Only the Court of Appeal and the Superior Court of Justice,
    exclusive of the Small Claims Court, may grant equitable relief, unless
    otherwise provided.

[23]

Neither s. 96(3) nor inherent jurisdiction can
    trump the clear statutory scheme set out for judicial review in the
Judicial Review Procedure Act
, however.
    An application for judicial review must be heard by the Divisional Court.

[24]

J.N. argues that the appellants ought not to be
    able to raise the argument for the first time on appeal, relying on a
    well-accepted line of jurisprudence to the effect that issues ought not to be
    asserted for the first time at this level.  That line of jurisprudence cannot
    assist J.N., however, because the problem that must be addressed is whether the
    court below had jurisdiction to determine the issues in the first place.

[25]

Some may view this approach as technical and as
    a failure by this Court to address what are admittedly important issues.  The
    law has long been clear, however, that jurisdiction is fundamental to a court
    or tribunals authority to deal with a matter.  Jurisdiction is not optional,
    cannot be conferred by consent, cured by attornment, or assumed voluntarily
    just because there is an interesting and significant issue to be considered:
    see
McArthur v. Canada (A.G.)
, 2008 ONCA 892, 94 O.R. (3d) 19, at para. 3, affd 2010 SCC 63,
    [2010] 3 S.C.R. 626;
Rothgiesser v. Rothgiesser
(2000), 46 O.R. (3d) 577 (C.A.), at paras. 18-19 and 33-39.

Disposition

[26]

We would accordingly allow the appeal and set aside
    the order of the application judge.

[27]

In our view, this is a case where the parties
    should bear their own costs. Accordingly, there will be no order as to costs.

K.M. Weiler J.A.

R.A. Blair J.A.

Paul Rouleau J.A.

Released: June 21, 2012

[1]

Susan Cardwell, the
    Manager of the Records Department for the DRPS, indicated in her affidavit that
    neither the Ottawa nor the Waterloo Police Service have an appeal process in
    place. She further indicated that the Toronto and the Peel Police Service have
    appeal processes in place, but that no specific criteria for review are listed.


COURT OF APPEAL FOR ONTARIO

CITATION:
Jafarzadehahmadsargoorabi v. Sabet, 2012
    ONCA 391

DATE: 20120608

DOCKET: C54737

Rosenberg, MacPherson and Cronk JJ.A.

BETWEEN

Saeid Jafarzadehahmadsargoorabi

Plaintiff (Appellant)

and

Naghmeh Sabet

Defendant (Respondent)

Jeffrey D. Landman, for the appellant

A.S. Halpert, for the respondent

Heard and released orally: June 6, 2012

On appeal from the judgment of Justice Lois B. Roberts of
    the Superior Court of Justice, dated November 10, 2011.

ENDORSEMENT

[1]

The appellant appeals the judgment of Roberts J. dated November 10, 2011
    staying the appellants action against the respondent in Ontario. On a motion
    brought by the appellant, the motion judge ordered a stay on three bases: (1)
    issue estoppel  the Quebec Superior Court had already decided the
    jurisdictional issues relating to the parties dispute; (2) jurisdiction
    neither party had a real and substantial connection with Ontario; and (3)
forum
    non conveniens
 Quebec is clearly the more appropriate forum for
    resolution of the issues raised by the appellants Ontario action.

[2]

The appellant challenges all three of these conclusions. He says that
    the motion judge made legal errors relating to the doctrines of collateral
    attack and attornment to jurisdiction. He also contends that the motion judge
    did not properly weigh the relevant factors relating to
jurisdiction
    simpliciter
and
forum non conveniens
set out in
Club Resorts
    Ltd. v. Van Breda
, 2012 SCC 17.

[3]

In our view, this appeal can be resolved on the basis of
forum non
    conveniens
. The motion judge carefully and comprehensively analyzed the
    relevant factors from
Van Breda
and concluded that [t]he established
    factors overwhelmingly favour the defendants position that Quebec is clearly
    the more appropriate forum. We agree.

[4]

The appeal is dismissed. The respondent is entitled to her costs of the
    appeal fixed at $11,070 inclusive of disbursements and applicable taxes.

M.
    Rosenberg J.A.

J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

Locking v. Armtec
    Infrastructure Inc., 2012 ONCA 467

DATE: 20120629

DOCKET: C54955

Armstrong, Watt and Pepall JJ.A.

BETWEEN

Keith Locking

Plaintiff (Appellant)

and

Armtec
    Infrastructure Inc., Scotia Capital Inc., TD Securities Inc., BMO
    Nesbitt Burns Inc., Charles M. Phillips, James R. Newell, Robert
    J. Wright, Ron V. Adams, Don W. Cameron, Brian W.
    Jamieson, John E. Richardson and Michael S. Skea

Defendants

Proceeding under the
Class
    Proceedings Act
, 1992

AND BETWEEN

Bruce Simmonds, Robert
    Grant and Gordon Moore

Plaintiffs (Respondents)

and

Armtec Infrastructure Inc., Charles M. Phillips, James R. Newell,
Michael
    S. Skea, Donald W. Cameron, Scotia Capital Inc., TD
    Securities Inc. and BMO Nesbitt Burns Inc.

Defendants

Proceeding under the
Class
    Proceedings Act
, 1992

Earl A. Cherniak, Q.C. for the plaintiff/appellant Keith
    Locking

Paul J. Pape and David S. Steinberg, for Gordon Moore

Heard: May 22, 2012

On appeal from the order of Justice Bruce G. Thomas of
    the Superior Court of Justice, dated January 20, 2012.

ENDORSEMENT

[1]

For reasons to follow in due course, we have concluded that the carriage
    order of Justice Thomas of the Superior Court of Justice dated January 20, 2012
    is an interlocutory order.  This court does not have jurisdiction to hear the
    appeal.  The appeal lies to the Divisional Court by way of leave to appeal.

[2]

In the circumstances, we respectfully request the Divisional
    Court/Superior Court of Justice to accommodate counsel in getting a leave to
    appeal motion on as expeditiously as possible.

Robert P. Armstrong J.A.

David Watt J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Malamas v. Crerar
    Property Corp., 2012 ONCA 465

DATE: 20120628

DOCKET: M41317

Rouleau, Watt and Pepall JJ.A.

BETWEEN

William Malamas

Plaintiff/Appellant in Appeal

and

Crerar Property Corp., Stewart J.L. Robertson,
    George Foulidis, Chris Tatsis, Panagiota Tatsis, Gary Caplan and Teplitsky
    Colson LLP

Defendant/Respondent in Appeal

William Malamas, in person

Constantine Alexiou, for the moving party Panagiota
    Tatsis

Heard: June 27, 2012

APPEAL BOOK ENDORSEMENT

[1]

This is a motion to quash the appeal from Newbould J.s order. Newbould
    J. dismissed the appellants appeal of the masters order setting aside the noting
    in default of the defendant Panagiota Tatsis.

[2]

The responding party makes two principal submissions. First, that
    Newbould J. committed a procedural error in having referred the matter to be
    decided by a master. Second, the masters order and therefore Newbould J.s
    order finally determined whether Panagiota Tatsis was estopped from bringing
    the motion to set aside the default judgment.

[3]

We would not give effect to the responding partys arguments.

[4]

In our view Newbould J. did not commit a procedural error as alleged.
    Rule 37.15(1.1) allows a judge who is directed to hear all matters in multiple
    proceedings to refer to a master any motion within the jurisdiction of a
    master. Nothing in the direction of the judge directing Newbould J. to hear
    all matters restricted Newbould J.s discretion in this regard.

[5]

On the second issue raised by the responding party, the fact that a
    master has finally determined an argument against the setting aside of the
    noting in default does not change the matter at issue from being interlocutory to
    being a final. None of the issues raised in the claim or the defence have been
    finally determined by the order of the master or the Superior Court.

[6]

In our view, the motion should be granted and the appeal is quashed.

[7]

Costs to the moving party fixed at $3,000 inclusive of disbursements and
    applicable taxes.