COURT OF APPEAL FOR ONTARIO
CITATION: Gallen v. Sutherland, 2023 ONCA 170
DATE: 20230315
DOCKET: M53823 (COA-22-CV-0121)
Pepall, Harvison Young and George JJ.A.
BETWEEN
Steven Gallen, Debbi Gallen, 1800922 Ontario Inc., and 2632344 Ontario Inc.
Plaintiffs
(Respondents/Moving Parties)
and
Stephen Beals Sutherland
Defendant
(Appellant/Responding Party)
Jonathan Rosenstein, for the moving parties
Stephen Beals Sutherland, acting in person
Heard: March 6, 2023
REASONS FOR DECISION
[1] The respondents move to quash this appeal from orders they state are interlocutory and that as a result, jurisdiction lies with the Divisional Court with leave.
[2] On June 14, 2022, the respondents obtained summary judgment in a mortgage enforcement action for, among other things, possession of property owned by the appellant in Aurora, Ontario. They subsequently moved for leave to obtain a writ of possession.
[3] The appellant, who is self-represented, did not appeal the June 14, 2022, order. Rather, he brought a motion to vary the order under r. 59.06. This motion to vary was dismissed by order dated July 22, 2022, and the respondents’ motion for leave, which was on notice to the appellant, was granted. Relying on r. 37.14, dealing with a motion to set aside or vary a motion made without notice, the appellant then moved to set aside that order. That motion was dismissed on August 25, 2022.
[4] The appellant then appealed both the July 22, 2022, order and the disposition of August 25, 2022, both of which the respondents submit are interlocutory in nature. Those appeals were joined by the Court of Appeal Registrar under a single docket number. No August 25, 2022 order was before the panel.
[5] An order dismissing a r. 59.06 motion to vary is an interlocutory order: Elguindy v. Elguindy, 2021 ONCA 768, at para. 6. The July 22, 2022, order dismissed the appellant’s motion to vary and the August 25, 2022 disposition, although stated to be pursuant to r. 37.14, was to the same effect. Given their interlocutory nature, jurisdiction lies with the Divisional Court and not this court.
[6] For these reasons, the motion to quash is granted. The appellant is to pay the respondents $1,000 in costs on a partial indemnity scale inclusive of disbursements and applicable tax.
“S.E. Pepall J.A.”
“A. Harvison Young J.A.”
“J. George J.A.”