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Orders - Final v Interlocutory

Skunk v Ketash (Ont CA, 2016)

In this case the Court of Appeal discusses the distinction between final and interlocutory orders as they determine the applicable appeal route, in the context of an appeal of a summary judgment order:
[29] There is no common law or inherent right of appeal. The Courts of Justice Act, R.S.O. 1990, c.C. 43, provides for the general appellate jurisdiction of this court and the Divisional Court in civil matters: see ss. 6, 19 and 21.9.1.

[30] Subject to certain exceptions – none of which are relevant in this case – an appeal lies to this court from a final order of a judge of the Superior Court of Justice. If an order is interlocutory, rather than final, the appeal lies to the Divisional Court, with leave: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.), at para. 15; Albert v. Spiegel (1993), 17 C.P.C. (3d) 90 (Ont. C.A.), at p. 91.

[31] The reason for the distinction is explained by Paul M. Perell and John W. Morden in The Law of Civil Procedure in Ontario, 2d ed. (Markham: Lexis-Nexis Canada Inc., 2014), at p.910:
¶12.41 In general terms, the policy underlying the distinction between interlocutory and final orders is the proportionality principle. For judicial decisions that are of comparatively less importance to the parties and the public than other decisions (particularly those other decisions that are determinative of the outcome of the litigation), there should be no appeal at all, or the right of appeal should be curbed by a leave requirement. [Footnote omitted.]
[32] A “final order” is one that finally disposes of an action or application, or that finally disposes of a “substantive right” of one of the parties: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, at p. 680; Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), at p. 324; R.S. v. S.H. (2000), 2000 CanLII 17038 (ON CA), 52 O.R. (3d) 152 (C.A.), at para. 13; Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53 (CanLII), 330 O.A.C. 142, at paras. 22-23.

[33] Regrettably, the question of whether an order dismissing a summary judgment motion is a final order is not a novel one. In V.K. Mason Construction Ltd. v. Canadian General Insurance Group Ltd. (1998), 1998 CanLII 14615 (ON CA), 42 O.R. (3d) 618, Finlayson J.A. wrote this, at pp. 623-24 and 625-26:
When parties argue whether orders of this nature are final or interlocutory, they appear to lose sight of the fact that there is a remedy where the order is interlocutory, although admittedly, it is to another court and requires leave. It was apparent from the argument in this appeal that the appellant's real concern was not where to appeal the motions court judge's order allowing the action to proceed to trial. Rather, the real concern was that, unless overturned on appeal, the findings underlying this order would be binding on the judge who ultimately tried the action, either because the findings are res judicata or raise issue estoppel, or because, in this particular case, they are so detailed and incisive that the trial judge, even if he or she does not feel obliged in law to follow them, will show them great deference and adopt them as persuasive. The latter consideration may be a sound reason for allowing leave to appeal, but it is of no concern to this court. As to res judicata or issue estoppel in the context of a motion for summary judgment that is dismissed, I do not think that the motions court judge's reasons should be taken as anything more than his explanation for finding that there is a genuine issue for trial. It is the finding that there is a genuine issue for trial that is res judicata.

Conceptually, it may be difficult to accept that where a plaintiff or defendant moves for summary judgment and succeeds, the appeal from that summary judgment is to this court as of right whereas if the moving party fails to obtain a summary judgment, the order dismissing the motion is to the Divisional Court, and only with leave of that court. However, the distinction has a long tradition in the law. The summary judgment finally determines the issue or issues between the parties and gives rise to a plea of res judicata in subsequent proceedings on the same issue or issues. An order dismissing a motion for summary judgment, on the other hand, determines only that there is a genuine issue for trial and the issue or issues have not been finally resolved.
[34] This court reiterated in Ashak v. Ontario (Director, Family Responsibility Office), 2013 ONCA 375 (CanLII), 115 O.R. (3d) 401, at para. 7, that, in general, an order dismissing a motion for summary judgment is not a final order because a decision under r. 20 determines only that a genuine issue requiring a trial exists.

[35] Purported findings of fact by a motion judge who dismisses a summary judgment motion do not have binding effect in the subsequent proceeding unless the motion judge invokes her power under r. 20.05(1) to make an order specifying what material facts are not in dispute – a power that exists where summary judgment is refused or is granted only in part. As this court stated in Ashak, where a motion judge proposes to do so, she should specifically say so, and the order should refer to r. 20.05(1): para. 8, citing Leone v. University of Toronto Outing Club, 2007 ONCA 323 (CanLII), at para. 3.

[36] The same principle applies in the case of questions of law. At paras.11 and 13 of Ashak, the court wrote:
Like the court in Leone, it is our view that, if a motion judge dismissing a motion for summary judgment proposes to exercise the power under rule 20.04(4)[[1]] to make a binding determination of law, the motion judge should specifically invoke the rule, and reference to the rule, as well as the legal determination made, should form part of the formal order. In our opinion, the issue of whether an order is final or interlocutory should not turn on the forcefulness of the reasons for the conclusion….

In our view, in most instances, the content of the formal order is integral to determining what has been decided against a party in a fashion that is binding.
[37] Ashak distinguished Almrei v. Canada (Attorney General), 2011 ONCA 779, 345 D.L.R. (4th) 475, in which an order dismissing a summary judgment motion was found to be a final order, and makes clear that Almrei “should not be viewed as establishing a general principle that the question of whether an order dismissing a motion for summary judgment is final can be determined based on a motion judge’s reasons”: para. 15.

[38] Mr. Almrei had been held in custody for many years on two successive security certificates issued under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Ultimately, after a lengthy hearing, parts of which were held in camera or ex parte, the second security certificate was quashed by Mosely J. Mr. Almrei subsequently commenced a civil action against Canada for, among other things, negligent investigation, false imprisonment and various Charter breaches. He brought a motion for partial summary judgment, arguing that issue estoppel applied and the parties were bound by the findings made by Mosley J. The motion judge dismissed Mr. Almrei’s motion, explaining that Mr. Almrei sought to invoke the doctrine of issue estoppel as a sword to obtain summary judgment, rather than as a shield or defence to preclude litigation on matters already decided between the parties, and that the test for issue estoppel had not been met.

[39] This court dismissed the Attorney General of Canada’s motion to quash Mr. Almrei’s appeal to this court. At para. 4 of its analysis, this court noted that the hearing before Mosely J. involved hearing evidence that Mr. Almrei might never be in a position to call or even access. Thus, depriving Mr. Almrei of the ability to use the findings of fact by Mosely J. could deprive Mr. Almrei of substantive rights.

[40] At para. 7, this court concluded:
[Mr. Almrei] singled out for resolution the question of use of issue estoppel. A finding that issue estoppel is not available is a final determination of that issue of law. The decision of the motion judge has arguably deprived the appellant of a substantive right that could have been entirely determinative of the Attorney General's liability….
[41] In Ashak, the court provided three reasons why Almrei should not be taken as establishing a general principle that where a judge purports to make a legal determination in reasons dismissing a summary judgment motion those determinations should be treated as binding.

[42] First, Mr. Almrei had formally singled out the precise legal issue to be decided. Unlike in Ashak, the precise scope of the point of law determined by the motion judge was clear.

[43] Second, the determination on the question of issue estoppel potentially deprived Mr. Almrei of the ability to prove his case.

[44] Third, Canada – the party that moved to quash the appeal on the basis that the order was interlocutory – maintained that the question of issue estoppel was res judicata.

[45] By distinguishing Almrei in that manner, the court left open the possibility that, in circumstances paralleling those in Almrei, a legal determination could be found to be binding, even if not included in the formal order.

[46] In Fanshawe College of Applied Arts and Technology v. AU Optronics Corp., 2015 ONCA 808 (CanLII), the motion judge made several determinations of law in the course of dismissing the defendants’ motion for summary judgment. When the defendants appealed to this court, the plaintiff moved to quash their appeal for lack of jurisdiction. In the course of its submissions, the plaintiff conceded that “nothing in the order sought to be appealed, or in the reasons of the motion judge in support of that order, precludes the [defendants] in any way from advancing at trial their arguments regarding s. 36(4) of the Competition Act or abuse of process as substantive defences or otherwise.” In light of that concession, this court quashed the appeal in a three-paragraph endorsement on the basis that the order below was interlocutory, and not final.

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