The appellant (Ye) applied under Rule 14.05 of the Rules of Civil Procedure for a declaration regarding surplus funds from a mortgage sale.
The dispute concerned fund allocation between the second (Turton) and third (Ye) mortgagees after the first mortgagee sold the property under power of sale.
The application judge dismissed Ye’s application due to:
Lack of notice to the property owner.
Insufficient evidence on the third mortgage’s value at the sale date.
The dismissal was without prejudice, allowing Ye to reapply with proper notice and evidence.
Motion to Quash Appeal
Turton argued the appeal should be quashed because the order was interlocutory, requiring leave from the Divisional Court per Courts of Justice Act, s. 19(1)(b).
Ye contended the dismissal was a final order, making it appealable as of right.
Decision & Reasoning
The Court of Appeal ruled the order interlocutory, as it determined no substantive rights—Ye could still file a fresh application.
The court distinguished Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), where arbitration was conclusively determined, whereas Ye’s claim remained open.
The appeal was quashed.
Costs
Ye was ordered to pay Turton $6,500 for motion and appeal costs?.
