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Appeals - Final versus Interlocutory Orders (1)

. Preamble

The issue of when a court order is 'final' as opposed to 'interlocutory' is probably the most frequently litigated in the appeal courts. This is because it determines if - and if so, where - an appeal will be heard. For instance, interlocutory orders from the Small Claims Court are not appealable [CJA 31] - the courts expect you to live with the negative interlocutory orders, argue the trial as best you can, and then - if you lose - advance your interlocutory problem in a normal appeal of the final order.

Another very frequent 'final versus interlocutory' issue arises in the higher courts, to determine whether an appeal is properly brought before the Divisional Court (which requires leave) or the Court of Appeal. As Jamal JA states it simply in Paulpillai Estate v. Yusuf (Ont CA, 2020) [below]:
[15] Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal lies to the Court of Appeal from “a final order of a judge of the Superior Court of Justice”, while s. 19(1)(b) provides that an appeal lies to the Divisional Court from “an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court”.
Despite their protestations to the contrary, the courts have found it remarkably difficult to formulate a clear test for the 'final versus interlocutory' distinction - even to decide on a leading case [although the most-often cited is Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.)]. When faced with such a problem practitioners usually try to find a case 'on point' (ie. a close as possible to their fact and procedural situation) and advance this as a precedent to their court, although even this tactic is not sure-fire as a review of these cases will attest. This website has an initial collection of these on-point cases [see 'Final v Interlocutory On-Point Cases'].

Regardless, it is hoped that this collection of case extracts will enable users to grapple with the problem more effectively.
Note: Another related issue is when fact findings on interlocutory orders are or are not binding on the trial judge, which otherwise might provide an 'out' from this situation. See 'Issue Estoppel', and the express provisions of R20.05(1) for judges hearing summary judgment motions.
. Paulpillai Estate v. Yusuf

In Paulpillai Estate v. Yusuf (Ont CA, 2020) the Court of Appeal set out factors to apply when determining whether an order is interlocutory or final:
[15] Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal lies to the Court of Appeal from “a final order of a judge of the Superior Court of Justice”, while s. 19(1)(b) provides that an appeal lies to the Divisional Court from “an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court”.

[16] The main principles that determine whether an order is interlocutory or final are well known:
1. An appeal lies from the court’s order, not from the reasons given for making the order: see Grand River Enterprises v. Burnham (2005), 2005 CanLII 6368 (ON CA), 197 O.A.C. 168 (C.A.), at para. 10; Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, at para. 21; and Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404, 131 O.R. (3d) 455, at para. 33.

2. An interlocutory order “does not determine the real matter in dispute between the parties — the very subject matter of the litigation — or any substantive right[.] Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided”: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16, citing Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678; Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). See also Amphenol, at para. 18.

3. In determining whether an order is final or interlocutory, “one must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order”: Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, 142 O.R. (3d) 317, at para. 7.

4. The question of 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”: Laurentian Plaza Corp. v. Martin (1992), 1992 CanLII 7561 (ON CA), 7 O.R. (3d) 111 (C.A.), at p. 116; see also Amphenol, at para. 19. In other words, the characterization of the order depends upon its legal nature, not its practical effect: see Ontario Medical Assn. v. Miller (1976), 1976 CanLII 679 (ON CA), 14 O.R. (2d) 468 (C.A.), at p. 470; Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784, 139 O.R. (3d) 239, at para. 3.
. Belton v. Spencer

In Belton v. Spencer (Ont CA, 2020) a single judge the Court of Appeal discussed whether they had jurisdiction to decide whether an appeal was interlocutory or final (here an order striking a jury notice):
[40] The respondent takes the position that the Order is interlocutory in nature and, therefore, the appellant has appealed to the wrong court – her appeal properly lies to the Divisional Court with leave: Courts of Justice Act, s. 19(1)(b). In response, the appellant submits that she has filed a notice of appeal in the Court of Appeal, her appeal has been assigned an appeal number, and she therefore has a proper appeal before this court unless and until a panel gives effect to the respondent’s motion to quash.

[41] I adopt the approach taken by my colleague, Simmons J.A., in Fontaine v. Attorney General of Canada, 2020 CanLII 64770 (Ont. C.A.), at para. 14, where she stated:
It is not for me, sitting as a single judge of this court, to determine whether this court has jurisdiction to entertain the appellants’ appeal. Nonetheless if I were persuaded that the Order under appeal was interlocutory, or even probably interlocutory, that would militate against granting the requested stay.
[42] The weight of authority holds that an order striking out a civil jury notice is interlocutory in nature.

[43] First, in Belende c. Greenspon, 2007 ONCA 448, 226 O.A.C. 175, leave to appeal refused, (2008) 2008 CanLII 2276 (SCC), 249 O.A.C. 398, a panel of this court held that such an order is interlocutory, stating, at para. 3:
Malgré le fait qu’un droit à un procès devant jury est un droit de fond, la decision d’annuler ou de ne pas annuler la convocation du jury ne détermine aucunement les questions en litige dans cette affaire. Plutôt, l’ordonnance du juge Reilly est sur une question collatérale. Voir Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.). L’ordonnance ne met pas fin aux poursuites de Monsieur Ndem et ne limite pas les recours qu’il demande. Voir Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.); Huras v. Primerica Financial Services Ltd. (2000), 2000 CanLII 16892 (ON CA), 137 O.A.C. 79 (Ont. C.A.).(unofficial Google translation)
Despite the fact that a right to a jury trial is a substantive right, the decision to set aside or not to set aside the jury notice[1] does not in any way determine the issues in this case. Rather, Justice Reilly's order is on a collateral issue. See Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.). The order does not put an end to Mr. Ndem's prosecution and does not limit the remedies he requests. See Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.); Huras v. Primerica Financial Services Ltd. (2000), 2000 CanLII 16892 (ON CA), 137 O.A.C. 79 (Ont. C.A.).

[44] The appellant argues that the decision in Belende is unclear and was incorrectly decided. I see nothing unclear in the decision; it remains the most recent decision of a panel of this court on the issue.

[45] Second, although the decision of this court in Stoicevski v. Casement (1983), 1983 CanLII 1679 (ON CA), 43 O.R. (2d) 436 (C.A.) did not involve an order striking out a jury notice, in the course of its reasons the panel identified a matter involving a jury notice as one that results in an interlocutory order: at p. 438.

[46] Third, a group of Divisional Court decisions treats orders striking out jury notices and orders dismissing motions to strike out jury notices as interlocutory: Benjamin v. Primerica Life Insurance Company et al., 2017 ONSC 6273, 12 C.P.C. (8th) 82 (Div. Ct.); Safranyos v. McHugh, 2015 ONSC 6146, 2015 CarswellOnt 14954 (Div. Ct.), at para. 7; Kayhan v. Greve (2008), 2008 CanLII 32832 (ON SCDC), 92 O.R. (3d) 139 (Div. Ct.); Forget v. Sutherland, [2006] O.J. No. 422 (Div. Ct.).
[47] Fourth, one of the classic articulations of the distinction between a final and an interlocutory order is that found in Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). There, this court stated that a final order is not only one that finally disposes of the rights of the parties to the litigation, but an order may also be final if it finally disposes of a defence and thereby deprives “the defendant of a substantive right which could be determinative of the entire action”: at p. 324.

[48] The appellant contends that the frequent references in the jurisprudence to the right to a civil jury trial as a “substantive right” signifies that an order striking a jury notice is a final order as described in Ball v. Donais. As the respondent points out, the difficulty with that submission is that an order striking out a jury notice does not deprive the appellant of a substantive right that could be determinative of the entire action. Such an order merely directs a mode of trial. And, as this court stated in Cowles, at para. 38, neither party has an unfettered right to determine the mode of trial: see also, Cheung v. Samra, 2018 ONCA 923, 431 D.L.R. (4th) 18, at para. 7; Williams v. Grand River Hospital, 2016 ONCA 793, 134 O.R. (3d) 319, at paras. 5-6.
. 1947755 Ontario Ltd. v. Caruso

In 1947755 Ontario Ltd. v. Caruso (Ont CA, 2020) the Court of Appeal considered when an issue on appeal was from a final or an interlocutory order:
[1] This is a motion to quash the appeal of the appellant, Gaspare Caruso. Caruso’s Notice of Appeal indicates he seeks to appeal three terms of an order of the Superior Court of Justice dated February 12, 2020 granting his motion to set aside the noting in default and default judgment obtained by the moving party, who is the plaintiff in the action below and respondent to the appeal. Caruso seeks to appeal the terms that he pay $52,000 into court to the credit of the action, and that upon his failure to make the payment into court by April 13, 2020 the plaintiff may bring a motion to strike his defence if one is filed, note him in default and move for default judgment. Caruso also seeks to appeal the costs award made upon disposition of the motion below.

[2] The first term that Caruso wishes to appeal, requiring payment of $52,000 into court, does not dispose of the dispute between the parties but allows that dispute to proceed to trial. It does not finally dispose of a substantive defence of the defendant.

[3] The second term might result in the default judgment against Caruso, but that would be a result of his failure to comply with the first term rather than the order itself. As Sharpe J.A. explained at para. 26 of Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642:
I recognize that failure to satisfy an order for security for costs may lead to a dismissal of the claim, but the sanction for non-compliance with an order cannot alter the nature of the order itself. Many procedural or interlocutory orders – for particulars, for production of documents, for the payment of costs ordered in interlocutory proceedings – may carry the ultimate sanction of dismissal of the non-complying party’s claim. But if the claim is dismissed, the dismissal flows from the party’s failure to comply with the interlocutory or procedural order, not from the order itself, and does not alter the interlocutory or procedural nature of the order that led to dismissal: see Laurentian Plaza Corp. v. Martin (1992), 1992 CanLII 7561 (ON CA), 7 O.R. (3d) 111 (C.A.).
[4] These terms are clearly not final orders of a judge of the Superior Court of Justice and no appeal lies from them to this court under s. 6 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
. Tridelta Investment Counsel Inc. v. GTA Mixed-Use Developments GP Inc.

In Tridelta Investment Counsel Inc. v. GTA Mixed-Use Developments GP Inc. (Ont CA, 2019) the Court of Appeal held that an order in an application under a statute to provide financial information was a final order, even though the parties had other litigation between them.

. Amphenol Canada Corp. v. Sundaram

In Amphenol Canada Corp. v. Sundaram (Ont CA, 2019) the Court of Appeal commented as follows on the distinction between interlocutory and final orders:
[18] Interlocutory orders do not determine the “real matter in dispute between the parties – the very subject matter of the litigation, but only a collateral issue. The orders may be final in the sense that they determine the very question raised by the applications, but they are interlocutory if the merits of the case remain to be determined”: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, at p. 4.

[19] The characterization of an order depends on its legal nature not its practical effect. Accordingly, although the practical effect of quashing a motion to set aside an interlocutory injunction may effectively end some part of the litigation, the legal nature of such an order remains interlocutory for the purposes of appeal: Ontario Medical Association v. Miller (1976), 1976 CanLII 679 (ON CA), 14 O.R. (2d) 468 (C.A.).
. Xela Enterprises Ltd. v. Castillo

In Xela Enterprises Ltd. v. Castillo (Ont CA, 2014) the Court of Appeal made the following salutory comments on the distinction between interlocutory and final orders, as they condition the availability and route of appeal:
[2] We agree that the Thorburn Order is an interlocutory order.

[3] The Thorburn Order does not determine the real matters in dispute between the parties nor, as the appellants acknowledge, does it deprive the appellants of any substantive defence, including the right to challenge the jurisdiction of the Ontario courts over the matters at issue. Although the Thorburn Order determined the issue raised on the motion below – the validity of the respondents’ efforts to effect service of their amended pleading – it did not address the merits of the underlying action or the lis between the parties. Moreover, any defences that the appellants had before this action was commenced are still alive. The Thorburn Order, therefore, is interlocutory in nature: see Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, 4 D.L.R. 580 (C.A.); Ball v. Donais 1993 CanLII 8613 (ON CA), (1993), 13 O.R. (3d) 322, 64 O.A.C. 85 (C.A.); Nantais v. Telectronics Proprietary (Canada) Ltd., [1996] O.J. No. 1220, 62 A.C.W.S. (3d) 422 (C.A.). See also Satchidananthan v. Sivanesan, 2013 ONSC 7515 (CanLII), 2013 ONSC 7515 (Sup. Ct.).




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