Barrister and Solicitor
Legal Writing and Research
Orders - Final v Interlocutory - Contempt
Chirico v. Szalas (Ont CA, 2016)
In this case the Court of Appeal reviewed the distinction between interlocutory and final orders, in the context of determining where appellate jurisdiction lay on an appeal from a contempt motion:
 The classic statement on the distinction between a final and interlocutory order appears in this court’s decision in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA),  O.R. 675, at p. 678:
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. The court approved the following test for determining whether an order is final or interlocutory, at p. 680:
It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made finally dispose of the rights of the parties? It if does, then I think it ought to be treated as a final order, but if it does not it is then, in my opinion, an interlocutory order. In Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), this court added a gloss to the distinction drawn in Hendrickson between a final and an interlocutory order. The court held that an order that does not finally dispose of the rights of the parties, but that finally disposes of an issue raised by a defence, and thereby deprives the defendant of a substantive right that could be determinative of the entire action (such as a statutory limitation period defence), is a final order.
 The Hendrickson distinction between final and interlocutory orders was further refined in Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.). In that case, Morden A.C.J.O. held that an order disposing of an application under r. 14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is a final order because it ends the particular proceeding before the court. This is so even if the order in question does not finally resolve the entire dispute between the parties. The critical question is whether the order resolves the matter in dispute in the application, and not some other proceeding that may be ongoing.
 The character of an order is determined by its legal effect, rather than the nature of the motion that brought it about. Categorizing an order as final or interlocutory does not turn on the particular circumstances of the plaintiff or defendant who is affected by the order. As Morden A.C.J.O. explained in Laurentian Plaza Corp. v. Martin (1992), 1992 CanLII 7561 (ON CA), 7 O.R. (3d) 111 (C.A.), at p. 116:
The question of categorization which determines access to appellate review must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case. As I have indicated, jurisdictional rules should be as clear as possible and their application should not be beset with factual disputes which themselves may be protracted and difficult to resolve. An interlocutory motion may produce an order that is either final or interlocutory. Moreover, different motions can result in either a final or an interlocutory order.
 It may be fair to say that this court’s decisions relating to whether dispositions of motions seeking a contempt order are final or interlocutory are not a model of clarity. However, in my view, the order under appeal is a final order. I come to this conclusion based on the following review of this court’s decisions on this issue.
 For context, I start with motions in which the court has found a party to be in contempt of court.
 In Bush v. Mereshensky, 2007 ONCA 679 (CanLII), 229 O.A.C. 200, at para. 10, this court indicated that it had “consistently held that a finding of contempt is a final order.” Bush has since been relied upon for the principle that a finding of contempt is considered to be a final order (see Mantella v. Mantella, 2009 ONCA 194 (CanLII), 246 O.A.C. 386, at para. 17; Leeming v. Leeming, 2016 ONSC 1835 (CanLII), 2016 ONSC 1835 (Div. Ct.), at para. 16).
 I now turn to orders, such as the one under appeal, in which the motion for contempt has been dismissed.
 In International Beverage Dispensers’ Union, Local 280 v. Kilgoran Hotels Ltd.,  O.J. No. 389 (C.A.), a grievor, who had been fired from his job, obtained judgment from the arbitration board ordering his reinstatement to his prior position. The respondent hotel refused to reinstate him to that position. The appellant union’s motion for an order finding the respondent in contempt was unsuccessful. The respondent appealed to this court. The question arose as to whether the order under appeal was final or interlocutory.
 The court in Kilgoran determined that the order was final, stating, at para. 11:
Applying what we understand to be the principles set out in the case of Hendrickson v. Kallio 1932 CanLII 123 (ON CA),  O.R. 675 and the comments thereon in Roblin v. Drake 1938 CanLII 54 (ON CA),  O.R. 711, we are all of the view that the order of Parker, J. determines the real matter in dispute between the parties in these proceedings; in other words, to use the language of Mr. Justice Middleton in the Hendrickson case, "the very subject matter of the litigation". It does not deal with a collateral matter as that term is used in cases. The order is not one which might be said to be a decision made during the course of proceedings but rather is one which finally disposes of the rights of the appellant to enforce the award which it claims to be entitled to enforce and we have come to that conclusion without taking into account what other order might have been made by Mr. Justice Parker. On the present state of the authorities that probably is quite irrelevant. [Emphasis added.] The case of Bassel’s Lunch Ltd. v. Kick et al.,  4 D.L.R. 106 (Ont. C.A.), also involved an appeal from the dismissal of a contempt motion. There, the appellant had alleged that the respondents had continued to picket the appellant’s restaurant despite an injunction order restraining them from doing so. In deciding that the order in question was final as opposed to interlocutory, the court explained, at p. 110:
This objection cannot be given effect to; such cases as Jarmain v. Chatterton (1882), 20 Ch.D. 493 and others discussed by the late Chancellor in Millar v. Macdonald (1892), 14 P.R. (Ont.) 499, effectually dispose of the question. Moreover the facts of the case plainly show that the order is final and not interlocutory. The respondents are not parties to the action; no proceedings are taken against them except one to stop their interfering with the plaintiff's business; the order appealed from denies the plaintiff this relief, finally and absolutely; there is nothing more to be done about it but to have the order reversed, so that the plaintiff may have the only relief sought. [Emphasis added.]