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Appeal - Final versus Interlocutory (10). 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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