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Appeal - Final versus Interlocutory (10). Zimmerman v. McNaull [limitation period defences] [pldgs amendment to add parties] [IMPORTANT]
In Zimmerman v. McNaull (Ont CA, 2026) the Ontario Court of Appeal granted a motion to quash an appeal, here on interlocutory versus final appeal route grounds.
This case involved the related issues of whether "an order adding parties" and "an order finally determining a limitation period defence" were interlocutory or final - and the frequent issue of whether the amendment was barred by a limitation period [under LA s.21.1], here in a joinder of parties context. The court delves into these issues at length, usefully exploring relevant practice issues:[3] The moving parties seek to quash the responding parties’ appeal, arguing that the order appealed from is interlocutory and that the appeal therefore lies to the Divisional Court, with leave, pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The responding parties maintain that the order is final because the motion judge finally determined and thus precluded their substantive limitation period defence, on which they say they can no longer rely.
[4] We start our analysis with some general principles.
[5] It is common ground that an order adding parties is an interlocutory order and that an order finally determining a limitation period defence is a final order because it deprives the defendant of a substantive defence: Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, 142 O.R. (3d) 317, at paras. 4-7, 10-12; Lawrence v. International Brotherhood of Electrical Workers (IBEW) Local 773, 2017 ONCA 321, 138 O.R. (3d) 129, at para. 13, aff’d 2018 SCC 11, [2018] 1 SCR 267; and Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at paras. 16-17.
[6] Section 21(1) [SS: 'Adding party'] of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, provides that: “If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.”
[7] Accordingly, on a motion to add parties, the motion judge must make, at least on a preliminary basis, findings of fact as to when the plaintiffs knew of the matters listed in s. 5(1)(a) of the Limitations Act, 2002, in relation to their claims against the proposed defendants and, under s. 5(1)(b), as to when they ought reasonably to have known of such matters: Morrison v. Barzo, 2018 ONCA 979, 144 O.R. (3d) 600, at para. 3.
[8] These factual findings are not necessarily final and for all purposes. Rather, the motion judge must only determine whether the evidentiary threshold is met for the requested amendments: Morrison, at para. 3; Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, at paras. 23-25; and Prescott, at paras. 10, 12. As this court observed in Prescott, at para. 10: “Motions to add parties that are successful, however, do not as a rule generate findings that are binding in the rest of the litigation.”
[9] As a result, for the limited purpose of determining an amendment motion, a motion judge may make a provisional, non-binding determination that a limitation period has not expired without finally disposing of it, or any limitation period defence. In such a case, the limitation period defence is left for final determination on a motion for summary judgment, if appropriate, or at trial: see e.g., Morrison, at paras. 6, 66; Mancinelli, at para. 34; and Di Filippo v. Bank of Nova Scotia, 2024 ONCA 33, at para. 72, leave to appeal refused, [2024] S.C.C.A. No. 88.
[10] On the other hand, if the record permits, it is open to a motion judge on an amendment motion to make a final determination that a limitation period has expired and deny the amendment motion: Morrison, at para. 27. As this court explained in Arcari v. Dawson, 2016 ONCA 715, 134 O.R. (3d) 36, at para. 10, leave to appeal refused, [2016] S.C.C.A. No. 522:When a plaintiff's motion to add a defendant is opposed on the basis that her claim is statute-barred, the motion judge is entitled to assess the record to determine whether, as a question of fact, there is a reasonable explanation on proper evidence as to why she could not have discovered the claim through the exercise of reasonable diligence. If the plaintiff does not raise any credibility issue or issue of fact that would merit consideration on a summary judgment motion or at trial and there is no reasonable explanation on the evidence as to why the plaintiff could not have discovered the claim through the exercise of reasonable diligence, the motion judge may deny the plaintiff's motion. [Citation omitted.] See also C & C Nestco Corporation v. Starr, 2025 ONCA 792, at paras. 2-3, leave to appeal to S.C.C. requested, 42184.
[11] The question here, then, is to determine whether the motion judge finally determined the limitation period issue and precluded the defence. As we shall explain, we conclude that he did not.
[12] Confusion about the effect of the order under appeal has arisen in this case because 1) in their factum on the motion to amend their pleadings, the moving parties sought an order allowing the amendments without leave to the responding parties to plead a limitations defence; and 2) the definitive language that the motion judge used in his reasons to determine the amendment motion suggests a final determination of the limitation period issue. For example, he concluded in para. 2 of his reasons: “For the reasons set out, I find that the claim is not statute-barred, that it was discovered in June 2018, within the two-year period and that it could not have been discovered earlier with the exercise of reasonable diligence. The motion to file the amended statement of claim is allowed.”
[13] However, when the motion judge’s reasons are read as a whole – and especially alongside the issued and entered order – it becomes clear that his factual findings were preliminary and only for the purpose of determining the amendment motion.
[14] In his reasons, the motion judge followed the analytical framework in Morrison and found that the moving parties had met the requisite evidentiary threshold to demonstrate that the limitation period had not expired for the purpose of adding the responding parties as defendants to their action. Importantly, he did not accede to the moving parties’ request that the responding parties be precluded from relying on a limitation period defence. Indeed, as this court observed in Prescott, at para. 9, “[t]he motion judge’s reasons contain no language suggesting that any finding made in respect of the application of the Limitations Act had application beyond the motion itself.” Further, the issued and entered order confirms that there was no final determination of the limitation period issue nor that the responding parties’ limitation period defence was precluded: Prescott, at para. 8. It is well established that an appeal lies from the order and not the reasons and that in most cases, it is the content of the formal order that is integral in determining what has been decided and is binding against a party: Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404, 131 O.R. (3d) 455, at para. 33. That is the case here.
[15] With respect to the amendment, the order succinctly reads: “The Plaintiffs are granted leave to amend their Statement of Claim in accordance with the proposed Amended Statement of Claim attached to this Order”. The only other provision is that costs of the motion are payable to the moving parties. There is no reference to a limitation period defence: the order does not state that the limitation period defence is precluded. Accordingly, the responding parties are at liberty to plead and rely upon a limitation period defence in the action.
[16] It would have been clearer had the motion judge explicitly signaled that he was determining the limitation period issue for the purposes of only the amendment motion and that the moving parties’ request to finally determine the limitations period was denied. However, the fact that the order does not explicitly state that the responding parties are precluded from raising a limitation defence, in the face of such a request from the moving parties on the motion, signals that no such relief was granted.
[17] Moreover, to avoid any ambiguity, it would have been better had the order included an explicit term that the responding parties were not precluded from relying on the limitation period defence. Such as, for example, the terms included in the dispositions in Morrison, at para. 66: “the respondents are at liberty to plead the expiry of the limitation period as a defence”; and in Di Filippo, at para. 72: “the respondents ... are not precluded from pleading a limitations defence ... with the issue to be determined at trial or on summary judgment”. Such provisions avoid the uncertainty and additional costs exemplified by this case. However, as explained above, we are nevertheless satisfied that the responding parties are not precluded from raising a limitation period defence.
[18] For these reasons, we conclude that the order under appeal is interlocutory, and the appeal lies to the Divisional Court with leave. . Rabbani v. Furney [security for costs]
In Rabbani v. Furney (Ont CA, 2026) the Ontario Court of Appeal quashed an appeal for want of jurisdiction, here where the order appealed from was interlocutory - and thus brought in the wrong court [it should have been brought in the Divisional Court under CJA s.19(1)(b)].
Here the court considers whether an issue of security for costs is interlocutory and final, and - more generally - the interpretation of orders and of the concept of jurisdiction:[3] We are satisfied that we have no jurisdiction to hear this appeal. This court has consistently held that orders requiring the posting of security for costs are interlocutory, not final: see e.g., Nazarinia Holdings Inc. v. 2049080 Ontario Inc., 2012 ONCA 652, at para. 2; Leslie v. Encanto Potash Trading Corporation, 2021 ONCA 464, at para. 6; Kapital Produce Limited v. Farm Credit Canada, 2026 ONCA 114, at para. 1.
[4] The Furneys argue that because they cannot afford to post the amount specified in the order under appeal, the order will bring the litigation to an end, making it “final in substance”. They emphasize that there are no ongoing proceedings in this matter in the court below. However, “the characterization of [an] order depends upon its legal nature, not its practical effect”: Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16. Orders requiring a litigant to post security for costs are interlocutory, not final, because they do not “determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right”: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16.
[5] The Furneys also argue that this court has already “accepted jurisdiction” by receiving and filing their materials; that the respondent “never objected to this Court’s jurisdiction”, and never brought a motion to quash their appeal; and that they will be prejudiced if their appeal is not heard in this court.
[6] None of these considerations make a difference. As this court observed in J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, at para. 25:[J]urisdiction is fundamental to a court or tribunal’s authority to deal with a matter. Jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered: [7] In short, our finding that this court has no jurisdiction to hear appeals from orders of this nature means that the Furney’s appeal cannot proceed in this court. . Natario v. RBC Insurance Company of Canada
In Natario v. RBC Insurance Company of Canada (Ont CA, 2026) the Ontario Court of Appeal dismissed a motion to quash an appeal on final versus interlocutory 'appeal routes' grounds.
Here the court considers when an order is interlocutory or final, this for appeal route grounds:[2] The moving party claims that the order is interlocutory and can only be appealed to the Divisional Court with leave pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43. She claims that the order does not finally resolve all or part of the dispute between the parties; it only changes the “labelling” or format by which the substantive issues in the case will be decided.
[3] The insurers submit that the motion should be denied because the order forecloses their ability to advance civil fraud as a distinct defence. They therefore take the position that the order is final and that this court, not the Divisional Court, has jurisdiction to hear the appeal and determine whether the civil fraud defence should be permitted to proceed.
[4] It is agreed that if the motion judge’s order is final, the appeal is properly before this court; and if it is interlocutory, the quash motion should be allowed and the matter remitted to the Divisional Court.
[5] In our view, the denial of the insurers’ motion for leave to amend their pleadings to add civil fraud is a final order.
....
[15] The test for determining whether an order is final or interlocutory, is set out in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678, as follows:[An] 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 applications, but it is interlocutory if the merits of the case remain to be determined. [16] It is settled law that an order refusing leave to amend a pleading to advance a new substantive claim or defence is a final order: Horani v. Manulife Financial Corporation, 2023 ONCA 51, at para. 12. See also: 385925 Ontario Ltd. v. American Life Insurance (1985), 1985 CanLII 2204 (ON SC), 51 O.R. (2d) 382 (H.C.) and Ontario (Securities Commission) v. McLaughlin, 2009 ONCA 280, 248 O.A.C. 54, at para. 7.
[17] An order that conclusively disposes of an issue raised by way of defence or precludes the defendant from raising a defence deprives the defendant of a substantive right and is a final order: Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). . Ingarra v. Cartel & Bui LLP [default J]
In Ingarra v. Cartel & Bui LLP (Ont CA, 2026) the Ontario Court of Appeal considered whether a default judgment was final or interlocutory, and the appropriate review procedure for challenging default judgments:[4] A default judgment is an interlocutory order: Add-Vance Service Centre Ltd. v. Triloq Corp., 2024 ONCA 940, at para. 6. As such, this court does not have jurisdiction to hear an appeal from such an order: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1). Moreover, the proper procedure for challenging a default judgment is to have it set aside under r. 19.08 of the Rules of Civil Procedure. A party subject to a default judgment is prohibited from taking another step in the action, other than a motion to set aside the noting of default or any judgment obtained by reason of the default, without leave of the court or the consent of the plaintiff: r. 19.02(1)(b). . Mellace v. Mellace
In Mellace v. Mellace (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against "a partial determination" of mutual applications in a family corporation context.
Here the court considers the appeal route taken in this matter (which required a decision on common law trust principles), and the application of CJA s.6(2) ['Combining of appeals from other courts']:(i) The appeal appropriately lies to this court
[21] As a preliminary matter, the husband and sons argue that this appeal lies to the Divisional Court because the orders appealed from are interlocutory and made under the OBCA. Pursuant to s. 255 of that Act, appeals lie to the Divisional Court. They further argue that on a contextual analysis, the order was interlocutory because it did not determine the real issues in dispute between the parties, including the allegations of impropriety and the request for a wind-up of 122: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675.
[22] The appeal properly lies with this court. The determination of beneficial ownership of the Alliston property was made on common law principles, falls outside of the purview of the OBCA, and finally determines the rights of the parties in relation to that property. It is therefore not necessary to decide whether the matters related to share structure and the impugned Shareholders’ Meeting were decided based on common law principles of corporate governance, as the wife suggests, or under the OBCA. Pursuant to s. 6(2) of the Courts of Justice Act, 1990, c. C.43, because part of the order was final and grounded in common law principles, the entire order may be appealed to this court: see Buccilli v. Pillitteri, 2016 ONCA 775, 410 D.L.R. (4th) 480, at para. 22. . Sociedad Concesionaria Metropolitana de Salud S.A. v. Webuild S.p.A.
In Sociedad Concesionaria Metropolitana de Salud S.A. v. Webuild S.p.A. (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here regarding "whether a foreign arbitral award can be enforced in Ontario, not against the judgment debtor, but against a non-party to the arbitration who contests liability".
This was an exotic international case where a Chilean arbitrator made an award against an Italian company ['Astaldi'], and then - in Italian insolvency proceedings - an issue of contract interpretation arose as to whether a second Italian company ['Webuild'] "acquired Astaldi’s liability for the Arbitral Award". Subsequently, the successful party to the abitration ['Sociedad'] applied in Ontario "to enforce the Chilean Arbitral Award against Webuild although Webuild was not party to the Chilean arbitration". Then Webuild moved to stay that application on grounds that Ontario was a 'forum non conveniens' and that the "ability to enforce the Arbitration Award against Webuild had not yet been determined" (ie. Webuild's liability for the arbitration award hadn't been determined with finality), and this was best done in Italy. The judge granted Webuild's stay application. These are the reasons for decision of an appeal of the application judge's ruling, which was dismissed.
The court considered whether a forum non conveniens order was final or interlocutory, here for appeal route purposes:[48] A decision to grant or dismiss a stay for forum non conveniens is final for the purposes of appeal: M.J. Jones Inc. v. Kingsway General Insurance Co. (2003), 2003 CanLII 37356 (ON CA), 68 O.R. (3d) 131 (C.A.); Airia Brands Inc. v. Air Canada, 2017 ONCA 792, 417 D.L.R. (4th) 467, at para. 37. This is consistent with the general rule that granting a stay is final: Halton Standard Condominium Corporation No. 550 v. Del Ridge (Appleby) Inc., 2023 ONCA 753, 169 O.R. (3d) 556, at para. 12.
[49] For the purposes of appellate jurisdiction, an order will be final if it ends the proceeding, even if “it does not finally determine another, quite possibly larger, issue between the parties which may be subsequently determined in some other proceeding or by some other process”: Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.), 117 D.L.R. (4th) 373, at p. 377. Such is the case here.
[50] Therefore, I find that the order below is final pursuant to s. 6(1)(b) of the Courts of Justice Act for the purposes of determining the route of appeal. . Sociedad Concesionaria Metropolitana de Salud S.A. v. Webuild S.p.A.
In Sociedad Concesionaria Metropolitana de Salud S.A. v. Webuild S.p.A. (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here regarding "whether a foreign arbitral award can be enforced in Ontario, not against the judgment debtor, but against a non-party to the arbitration who contests liability".
This was an exotic international case where a Chilean arbitrator made an award against an Italian company ['Astaldi'], and then - in Italian insolvency proceedings - an issue of contract interpretation arose as to whether a second Italian company ['Webuild'] "acquired Astaldi’s liability for the Arbitral Award". Subsequently, the successful party to the abitration ['Sociedad'] applied in Ontario "to enforce the Chilean Arbitral Award against Webuild although Webuild was not party to the Chilean arbitration". Then Webuild moved to stay that application on grounds that Ontario was a 'forum non conveniens' and that the "ability to enforce the Arbitration Award against Webuild had not yet been determined" (ie. Webuild's liability for the arbitration award hadn't been determined with finality), and this was best done in Italy. The judge granted Webuild's stay application. These are the reasons for decision of an appeal of the application judge's ruling, which was dismissed.
Here the court notes prior judicial preparation to accomodate for whether the subject order was final or interlocutory:[47] Prior to the hearing of this appeal, Lauwers J.A., as case management judge, directed that this appeal would proceed in the Court of Appeal. If the panel determined that the order under appeal is properly interlocutory, the panel would reconstitute itself as the Divisional Court to determine leave, and if granted, the merits of the appeal. The parties consented to this approach. . Rabbani v. Furney
In Rabbani v. Furney (Ont CA, 2025) the Ontario Court of Appeal held that an order dismissing a motion for contempt as interlocutory:[2] The respondents are correct. Based on the principles set out in Gueye v. DiNino, 2023 ONCA 342, 169 O.R. (3d) 137, at para. 8, leave to appeal refused, [2023] S.C.C.A. No. 391, the order dismissing the appellants’ motion for contempt in this case is interlocutory. Proceedings between the parties are ongoing and the appellants accordingly can take other steps to advance the allegations they made on the contempt motion. . Petersen Energía Inversora, S.A.U. v. Argentina [service validation of a state party]
In Petersen Energía Inversora, S.A.U. v. Argentina (Ont CA, 2025) the Ontario Court of Appeal granted a motion to quash an appeal, here where the appeal was against "the Republic of Argentina, of an order validating service of an application record upon the responding party".
The court considers whether the order appealed was interlocutory or final, here for appeal route purposes and in a state party context:[8] The responding party relies upon this court’s decisions in Paulpillai Estate v. Yusuf, 2020 ONCA 655, leave to appeal to S.C.C. refused, 39881 (February 24, 2022) and Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322, arguing that an order that finally disposes of any substantive right or defence of a party in an action is final, even if the order does not finally dispose of the dispute between the parties. It argues that the Impugned Order meets that description, since it determined its rights under both the SIA and the Convention, specifically regarding state sovereignty and sovereign immunity. It further relies upon this court’s decision in Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, 115 O.R. (3d) 1 (“Khan”), as confirming that orders regarding service under the Convention implicate substantive legal rights and are appealable directly to this court.
[9] We do not agree. The only issue resolved by the motion judge was the validity of the service of the application record on the responding party. As this court has affirmed, orders confirming the validity of service are generally interlocutory for the purposes of determining the appropriate route of appeal: Xela Enterprises Ltd. v. Castillo, 2014 ONCA 275, at para. 3; Shanghai Lianyin Investment Co. Ltd. v. Lu, 2023 ONCA 285, at para. 1.
[10] The fact that the Impugned Order determined that service upon a state party to the Convention can be validly effected in accordance with ss. 9(1)(c) and (2) of the SIA does not make the Impugned Order final. As this court explained in Paulpillai, at para. 16, an order that determines the question raised by a motion will be considered interlocutory if the real matters in dispute and the substantive rights of the parties remain undecided.
[11] That is the case here. As in Shanghai Lianyin Investment Co. Ltd, the only “real matter in dispute” before the motion judge was the validity of the service on the responding party. We see no reason why the general rule that such procedural orders are interlocutory should not apply in the context of service effected under the SIA. Nor is this conclusion inconsistent with Khan, since the issue of this court’s jurisdiction to hear the appeal was not raised or decided in Khan such that it cannot establish this court’s jurisdiction: CIBC Mortgages Inc. v. Computershare Trust Co. of Canada, 2015 ONCA 846, at para. 12; Singh v. Heft, 2022 ONCA 135, at para. 15.
[12] While the practical effect of the Impugned Order is to allow the recognition and enforcement application to proceed in Ontario, it does not deprive the responding party of any jurisdictional or other defences, including those relating to sovereign immunity, to which it may otherwise be entitled to make in the underlying proceeding. . Bombardier Inc. v. Alstom Rail Sweden AB [final v interlocutory where appeal against arbitration stay]
In Bombardier Inc. v. Alstom Rail Sweden AB (Ont CA, 2025) the Ontario Court of Appeal dismissed an appellate motion to quash, here where the issue was whether the underlying proceeding stay order was interlocutory or final:[2] By way of background, the moving party successfully argued before the motion judge that the subject matter of the parties’ dispute arguably concerned a matter that the parties agreed to submit to arbitration. The action was therefore stayed until further order of the court, pursuant to s. 9 of the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (the “ICAA”), in order to permit the arbitral tribunal to rule on its own jurisdiction.
[3] The moving party argues that this order is temporary and therefore interlocutory because the arbitral tribunal might decline jurisdiction, in which case the stay could be lifted.
[4] As this court held in Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited, 2023 ONCA 260, 480 D.L.R. (4th) 517, at paras. 16 to 17, an order granting a stay of an action under s. 9 of the ICAA is generally final in nature for the purposes of determining the route of appeal under the Courts of Justice Act, R.S.O. 1990, c. C. 43. Such an order determines that the arbitral tribunal will decide the jurisdictional issue of whether the dispute can be resolved through arbitration or whether it should proceed in the Superior Court. The order is appropriately regarded as final because it effectively ends the action before the court. This is not altered by the possibility that the stay could be lifted if the arbitral tribunal who hears the matter ultimately declines jurisdiction.
[5] The moving party also argues that the responding party treated the stay order as “temporary” in its costs submissions and the motion judge in his costs endorsement referred to the stay as interlocutory. Statements made in cost submissions do not alter the appropriate legal characterization of the order or alter the jurisdiction of this court. Moreover, as this court noted in Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16, leave to appeal to S.C.C. refused, 39881 (February 24, 2022), an appeal lies from the court’s order, not the reasons given for making the order. In this case, the motion judge’s characterization of the order as interlocutory for the purpose of making a subsequent costs order does not determine the legal nature of the underlying order in respect of determining the proper route of appeal.
[6] In any event, Husky Food Importers provides clarity to both litigants and courts on the proper appeal route in respect of stay orders under s. 9 of the ICCA. .... . Morgan Investments Group Inc. v. Adi Development Group Inc. [order against third parties]
In Morgan Investments Group Inc. v. Adi Development Group Inc. (Ont Div Ct, 2025) the Ontario Divisional Court granted a motion to quash an appeal, here argued that it was in the wrong court on final versus interlocutory grounds:[11] On the first issue, the affiliated lenders submit that because they are not parties to the oppression applications, the entire Order is final as against them. They then focus on paragraphs 6 and 9 of the Order, submitting that those paragraphs are final in any event.
[12] We are not persuaded that an order against a third party can never be interlocutory. The affiliated lenders’ status as third parties is a relevant consideration, but not determinative. In this case, as discussed further below, the Order did not finally determine the substantive rights of these non-parties. The Order granted an interlocutory injunction. In doing so, it did not determine the real matter in dispute regarding the affiliated lenders, specifically the validity of the assignment of the senior loan. The Order expressly provides that it is not a waiver, admission or estoppel regarding the validity of the assignment. Further, all the operative provisions in the Order are time-limited to the Standstill Period.
[13] The affiliated lenders then focus on paragraphs 6 and 9 of the Order, submitting that they are final even if the whole order is not final.
[14] Paragraph 6 required that 100 Ontario fund holdbacks under the senior loan during the Standstill Period, limited to the amount and process in the commitment letter. The affiliated lenders submit that this changed the terms of the commitment letter, albeit for a short period of time, and suggests that those funds might not be recoverable. There is no adequate foundation for this argument in the record before this Court. The motion judge expressly found that the loan was effectively secured. Further, a term requiring the payment of money may and often does form part of an interlocutory order. It is not necessarily final.
[15] Paragraph 9 provided that any notices of default and notices of intention to enforce security under the senior loan were “null and void and/or frozen (i.e. any time period triggered by or running pursuant to these documents is suspended) for the duration of the Standstill Period.”
[16] The affiliated lenders submit that this paragraph is illogical because it says that something is null and void only for a certain time period, after which is it no longer null and void. The affiliated lenders then focus on the phrase “null and void” in isolation. However, in oral argument, the affiliated lenders accepted that that this Order could be read in two ways, only one of which would have a permanent effect.
[17] In our view, it is clear that the Order was meant to be temporary, not permanent. While the choice of the phrase “null and void” may be inapt taken out of context, it must be placed in context. This was an urgent interlocutory injunction motion with the reasons for decision giving rise to the Order released with impressive speed. The proposed reading of that one phrase in isolation is not borne out on a full consideration of that term of the Order, or the entire Order, or the reasons for decision. Like the rest of the terms, it is temporary.
[18] We therefore conclude that the Order is interlocutory and under the CJA leave to appeal would be required. Leave has not been sought and the time to do so has passed. . Rocca v. Bayer [administrative reconsideration as final v interlocutory]
In Rocca v. Bayer (Ont Div Ct, 2025) the Ontario Divisional Court considers cross-appeals, these from an "order granting the request for review" of a costs order of a Normal Farm Practice Protection Board decision.
Here the court considers that reconsideration decisions can be final and interlocutory, depending on the circumstances:[27] In support of their position that the vice-chair’s order was final, the Bayers rely on 2541005 Ontario Ltd. v. Oro-Medonte (Township), 2023 ONSC 5569 (Div. Ct.). In that case, on a motion for leave to appeal to this court from a decision of the chair of the Ontario Land Tribunal granting a request for review, the motion judge held that the decision was final. However, Oro-Medonte is not and should not be taken as authority for the proposition that all orders granting a request for review are final. In fact, in Oro-Medonte, the motion judge said, at para. 32: “This court is not prepared to say that every Review Decision or Review Order will be final. There may well be circumstances that make the Chair’s decision/order interlocutory. This is not one of those circumstances.”
[28] In Oro-Medonte, the township had passed a zoning by-law amendment that restricted the growing of cannabis and industrial hemp crops to two industrial zones and did not permit such activities in agricultural zones. 2541005 Ontario Limited appealed the by-law amendment to the Ontario Land Tribunal. Following a hearing, the tribunal ordered the repeal of the by-law.
[29] The township then requested a review of the hearing decision under s. 23 of the Ontario Land Tribunal Act. Under rule 25.2 of the Tribunal’s Rules of Practice and Procedure, requests for review are considered by the Tribunal chair. Under rule 25.6, the chair has discretion to dismiss the request for review, order a motion to consider the request for review or grant the request for review in whole or in part.
[30] However, rather than simply granting the request for a review of the order, or ordering a motion to consider the request, the chair ordered that the order repealing the bylaw be “set aside and rescinded”, and that the appeal be reheard by a new panel. The basis of the order to set aside and rescind the order, rather than to simply allow the request for review, is unclear. Under rule 25.10 of the Tribunal rules, it is the Tribunal member or panel conducting the review hearing that has jurisdiction to “confirm, rescind, change, alter or vary” any order made by the Tribunal. Under rule 25.2, in order to provide for a rehearing under rule 25.10, it was unnecessary for the chair to set aside the original order. However, despite having said that the order was set aside and rescinded, the chair clarified that he did not intend to “prejudge in any way what outcome will result from the rehearing.” It would therefore appear that he did not intend to deal in any way with the merits of the appeal.
[31] On the motion for leave to appeal the chair’s order to this court, the motion judge found that it was final because it went “to the very heart of the matter. It overturned a lengthy Tribunal Hearing on its merits.” It was not “related to a procedural or collateral issue.” “It “went to the very foundation of this entire matter.” It dispose[d] of a substantive issue in the proceedings.”
[32] In my view, the present case may easily be distinguished. In Oro-Medonte, at the time of the motion for leave to appeal, no decision, approval or order remained extant which the new panel could confirm, rescind, change, alter or vary.
[33] Conversely, in the present case, Vice-Chair Neil did not purport to set aside or rescind the Board’s order. Rather, she granted the request for review, ordered a new costs hearing to take place in writing, and provided a timeline for the parties’ submissions. Accordingly, all that has happened so far is that a vice-chair has exercised her discretion to order a review of the costs order. The decision to confirm, vary, suspend or cancel the order will be made by a new panel of the Board. If the new panel confirms the existing costs award, there will be nothing for the Bayers to appeal.
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