DATE: 20041007
DOCKET: C41574
COURT OF APPEAL FOR ONTARIO
| RE: |
HER MAJESTY THE QUEEN (Respondent) – and – 1148044 ONTARIO LTD. c.o.b. as CAMBIA DESIGN BUILD and COLIN GRAHAM (Appellants) – and – TREK MECHANICAL LTD. and WAYNE D. SPEED (Respondents) |
| BEFORE: |
WEILER, GOUDGE and BLAIR JJ.A. |
| COUNSEL: |
Norman A. Keith and Cristie Sutherland for the appellants |
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| Victoria A. Kondo and Giuseppe Ferraro for the respondent Her Majesty the Queen |
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| Elliot Berlin for the respondents Trek Mechanical and Wayne D. Speed |
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| HEARD & ENDORSED: |
October 5, 2004 |
On appeal from the judgment of Justice Sarah Pepall of the Superior Court of Justice dated March 8, 2004, and from the order of Justice of the Peace Waugh dated September 5, 2003.
APPEAL BOOK ENDORSEMENT
[1] The order of Justice of the Peace Waugh was an interlocutory order dealing with the question of severance. Assuming, without deciding, that a judge who was not the trial judge had jurisdiction to entertain this application, certiorari should not be used as a substitute for the lack of a statutory appeal from an interlocutory order. Therefore, Pepall J. was correct to refuse to decide the certiorari application.
[2] To the extent the appellant alleges an anticipatory Charter breach, we are of the opinion that in the circumstances of this case the application is premature. The trial judge is in the best position to decide whether it is in the interests of justice to grant severance.
[3] Accordingly, the appeal is dismissed.
[4] In the circumstances we do not think this is a case for costs.