Capital Gains Income Streams Corp. et al. v. Merrill Lynch Canada Inc., 2007 ONCA 497

• Judge: Doherty, Laskin and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 03, 2007
• Jurisdiction: Ontario
• Citations: 2007 ONCA 497;(2007), 225 O.A.C. 210 (CA)

Capital Gains Income v. Merrill Lynch (2007), 225 O.A.C. 210 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. JL.008

Capital Gains Income Streams Corporation and Income Streams III Corporation (plaintiffs/appellants) v. Merrill Lynch Canada Inc. (defendant/respondent)

(C45513; 2007 ONCA 497)

Indexed As: Capital Gains Income Streams Corp. et al. v. Merrill Lynch Canada Inc.

Ontario Court of Appeal

Doherty, Laskin and Juriansz, JJ.A.

July 4, 2007.

Summary:

The plaintiffs brought a motion pursuant to rule 49.09 of the Rules of Civil Procedure for judgment in accordance with the terms of an alleged settlement agreement between the parties. The defendant argued that no settlement was reached.

The Ontario Superior Court, in a decision reported at [2006] O.T.C. Uned. 560, dismissed the motion. The plaintiffs appealed to the Court of Appeal. The Court of Appeal had jurisdiction to hear the appeal if the order under appeal was final (Courts of Justice Act, s. 6(1)(b)). However, if the order under appeal was interlocutory, the plaintiffs' appellate remedy lay in an application for leave to appeal to the Divisional Court.

The Ontario Court of Appeal, Laskin, J.A., dissenting, held that the order under appeal was interlocutory and the court had no jurisdiction to entertain the appeal. The appeal was quashed.

Courts - Topic 7451

Provincial courts - Ontario - Court of Appeal - Jurisdiction - Appeals from interlocutory orders - The plaintiffs brought a motion pursuant to rule 49.09 of the Rules of Civil Procedure for judgment in accordance with the terms of an alleged settlement agreement between the parties - The motion was dismissed - The plaintiffs appealed to the Court of Appeal - The Court of Appeal had jurisdiction to hear the appeal if the order under appeal was final (Courts of Justice Act, s. 6(1)(b)) - However, if the order under appeal was interlocutory, the plaintiffs' appellate remedy lay in an application for leave to appeal to the Divisional Court - The Ontario Court of Appeal held that the order under appeal was interlocutory and the court had no jurisdiction to entertain the appeal - The court stated that if a motion judge on a rule 49.09 motion found as a fact that there was no settlement agreement, thereby determining that issue for the purposes of the litigation, an order dismissing the motion on that basis would be a final order - However, in this case the motion judge was unable make a determination as to whether a settlement agreement existed or not.

Practice - Topic 5729

Judgments and orders - Final judgments and orders - What constitute - [See Courts - Topic 7451 ].

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders or judgments - What constitutes - [See Courts - Topic 7451 ].

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - [See Courts - Topic 7451 ].

Cases Noticed:

Royal Bank of Canada v. Central Canadian Industrial Inc. et al. (2003), 180 O.A.C. 275 (C.A.), refd to. [para. 24].

Chertow v. Chertow (2001), 146 O.A.C. 141 (C.A.), consd. [paras. 25, 40].

Fusarelli v. Dube, [2005] O.A.C. Uned. 461 (C.A.), consd. [para. 27].

Ball v. Ball, [2001] O.T.C. Uned. D51; 23 R.F.L.(5th) 14 (Sup. Ct.), affd. [2002] O.A.C. Uned. 116; 27 R.F.L.(5th) 229 (C.A.), refd to. [para. 31].

Milios v. Zagas (1998), 108 O.A.C. 224; 38 O.R.(3d) 218 (C.A.), refd to. [para. 62].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 65].

Bogue v. Bogue (1999), 126 O.A.C. 236; 46 O.R.(3d) 1 (C.A.), refd to. [para. 74].

Van Patter v. Tillsonburg District Memorial Hospital et al. (1999), 122 O.A.C. 80; 45 O.R.(3d) 223 (C.A.), refd to. [para. 84].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 6(1)(b) [para. 2].

Rules of Civil Procedure (Ont.), rule 49.09 [para. 10].

Authors and Works Noticed:

Holmested, George Smith, and Watson, Garry D., Ontario Civil Procedure (1993) (Looseleaf), vol. 5, pp. 62-19 to 62-48 [para. 37, footnote 2].

McCamus, John D., The Law of Contracts (2005), p. 526 ff. [para. 84, footnote 6].

Waddams, Stephen M., The Law of Contracts (5th Ed. 2005), p. 103 [para. 59].

Watson, Garry D., and Perkins, Craig, Holmested and Watson, Ontario Civil Procedure - see Holmested, George Smith, and Watson, Garry D., Ontario Civil Procedure.

Counsel:

Ronald G. Slaght, Q.C., and Paola Calce, for the appellants;

James D.G. Douglas and Angela Vivolo, for the respondent.

This appeal was heard on April 3, 2007, before Doherty, Laskin and Juriansz, JJ.A., of the Ontario Court of Appeal. The judgment of the Court of Appeal was released on July 4, 2007, including the following opinions:

Doherty, J.A. (Juriansz, J.A., concurring) - see paragraphs 1 to 33;

Laskin, J.A., dissenting - see paragraphs 34 to 85.