Indexed as:

Hamel v. Intellad Marketing Ltd.

Between

Guy Hamel, Edward Rice, In'Flector Control Systems Inc.,

Plaintiffs

and

Intellad Marketing Ltd., Ian Maclachlan, lawyer of the City of

Edmonton, McLaws & Company, a partnership registered pursuant

to the laws of the Province of Alberta, Defendants

[1986] O.J. No. 685

11 C.P.C. (2d) 137

38 A.C.W.S. (2d) 304

Action No. 356/85

 Supreme Court of Ontario - High Court of Justice

 London, Ontario

June 24, 1986

Potts J.

Appeals -- District Court staying Ontario action where Ontario not appropriate forum -- Order being final order and appeal to be heard by Divisional Court -- Courts of Justice Act, S.O. 1984, c. 11, ss. 15(1)(e), 123.

A District Court judge stayed an action on the basis that Ontario was not a forum conveniens. The order was appealed to a High Court judge.

HELD: The appeal was transferred to the Divisional Court. The order was a final one in that it indefinitely stayed an Ontario action. Such a final order was properly appealable to the Divisional Court pursuant to s. 15(1)(e) of the Courts of Justice Act.

R.G. Colautti, for the plaintiffs.

P.F. Milloy, for the defendants.

POTTS J.:-- On June 24, 1986, I ruled in favour of the responding parties' preliminary objection to my jurisdiction to hear this matter and promised that written reasons would follow.

In the main action, the plaintiffs claimed breach of contract on behalf of the defendants in relation to a memorandum of agreement entered into by the parties. The defendants then brought a motion before the Honourable Judge McDonald L.J.S.C., for an order dismissing or staying the action on the alternative grounds that Ontario was not the convenient forum, the Court had no jurisdiction over the subject matter of the action, or the action was frivolous, vexatious or an abuse of the court's process.

On June 12, 1986, Judge McDonald endorsed the defendant's motion record as follows:

"This motion is to have this action stayed. It is argued that the balance of convenience would dictate that the action be tried in Alberta as opposed to Ontario where it has been commenced. Both plaintiffs reside in Ontario and I am told that they will be the only witnesses at trial. The defendants and their witnesses reside in Edmonton. The agreement which forms the subject matter of this litigation calls for the law of the Province of Alberta to govern. The provisions of the Franchises Act of that province has been pleaded and I suspect that substantial reference to that Act will be required at trial. The agreement itself calls for manufacture and sale in the western provinces, not Ontario. I do not agree that the agreement itself was made in Ontario and I do not feel that the funds being held in lawyers' trust accounts both here and in Alberta has anything to do with where the action should be tried. In my view the cumulative effect of all of this evidence clearly dictates that the action should be tried in Alberta. The motion to stay these Ontario proceedings is therefore granted, but the plaintiffs' rights to institute another action in Alberta are specifically preserved. No costs."

The plaintiffs appealed the decision of Judge McDonald to this court and counsel for the defendants raised the preliminary objection to my jurisdiction based on the contention that Judge McDonald's order was a "final order' properly appealable to the Divisional Court pursuant to s.15(1)(e) of the Courts of Justice Act.

The practical effect and probable intent of Judge McDonald's disposition was to finally determine the action, in Ontario, on its merits. The defendants' motion was in pursuit of either a dismissal or a stay of the action. Although Judge McDonald termed his disposition a "stay', it is apparent from his complete endorsement that that choice of word was founded on a desire to protect the plaintiffs' rights to pursue the matter in Alberta, which was identified as the convenient forum for the action.

I reiterate the view of Dubin J.A. express- ed in General Capital Growth Ltd. v. City of Burlington et al, [1979] 24 O.R. (2d) 669, that in many cases the question whether an order under appeal is final or interlocutory is not easy to resolve. In the General Capital case the court of appeal set out the "classic statement' in this regard from Hendrickson v. Kallio, [1932] O.R. 675, at 670 as follows:

"The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties - the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined."

I am also mindful of the view expressed by Estey J. in Robert Halbert v. Netherlands Investment Company of Canada Limited, [1945] S.C.R. 329 at 336:

"... The word "interlocutory' is variously used, and in determining its meaning regard must be had to the context."

Considering all of the circumstances of the present case, I find that the converse of the situation in General Capital exists. The effect of Judge McDonald's order is not an adjournment of the trial pending the outcome of other proceedings, but more analogous to a permanent stay based on the determination of the appropriate forum for the action. As such, for all practical purposes, Judge McDonald's order had the effect of determining the real matter in dispute between the parties - the dispute being framed by an Ontario action which has been indefinitely stayed.

In the result, this appeal of a final order of the Local Judge is properly heard by the Divisional Court pursuant to s.15(1)(e) of the Courts of Justice Act. Pursuant to s. 123 of that Act, this appeal is transferred to the Divisional Court.

Certified Correct

Gail McGilvray, C.S.R., R.P.R.

Official S.C.O. Reporter