Wednesday, December 18, 2013

Not all orders to non-parties are final

Ambrose v. Zuppardi, 2013 ONCA 768

[6]          Smerchanski was further weakened in the subsequent decision in Royal Trust Corporation v. Fisherman (2001), 55 O.R. (3d) 794 (C.A.), in which this court, following Sun Life, emphasized that Smerchanski does not stand for the proposition that all orders in which the court denies a request to obtain information from non-parties are final.  Simply put, if the motion requesting information is dismissed where the information sought from the non-party may still be available from the parties to the action, the order is interlocutory.

[7]          It is of note that in Royal Trust, Finlayson J.A. went out of his way to highlight that the judgment in Smerchanski had been criticized on the basis that it does not "sit well" with prior jurisprudence. He expressed the view thatSmerchanski does not stand for the proposition that all orders directed to a non-party are final and stated that the principle expressed in that case should not be further expanded.

[8]          We agree with this view. Smerchanski should be restricted to cases in which there are like circumstances – a ruling made in the course of a trial quashing a subpoena of a witness in circumstances where the information sought to be obtained from the witness cannot be obtained from the parties' themselves. 

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