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Appeals - Final v Interlocutory Orders (4)

. Edgeworth v. Shapira

In Edgeworth v. Shapira (Ont CA, 2020) the Court of Appeal considered when decisions were interlocutory or final, and when reliance should be placed on CJA 6(2) to combine such matters in the Court of Appeal:
[4] We dismiss the motions to quash the appeal of the order striking the claim. The respondents are correct that an order striking a claim with leave to amend is interlocutory: Dobreff v. Davenport, 2007 ONCA 902, 88 O.R. (3d) 719. However, in this case, the motion judge’s order had the effect of foreclosing amendments to the claims struck. Therefore, the order was final.

[5] Regarding the removal of the appellant’s lawyer, the respondent is right to describe this order as interlocutory: Marrocco v. John Doe, 2014 ONSC 5663 (Div. Ct.). An appeal of an interlocutory order that lies to the Divisional Court with leave should not be combined with an appeal of a final order to this court pursuant to our power under s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C 43, if leave to appeal the interlocutory order has not yet been obtained from the Divisional Court: Cole v. Hamilton (City), 60 O.R. (3d) 284, 2002 CanLII 49359, at paras. 15-16; and Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, 123 O.R. (3d) 120, at para. 55.
. C-A Burdet Professional Corporation v. Gagnier

In C-A Burdet Professional Corporation v. Gagnier (Ont CA, 2016) the Court of Appeal clarified usefully that an Order, which may be interlocutory between the main parties, may be final for the interests of third parties:
[9] As a preliminary matter, there is the question of whether the appeal was properly before this court. The respondent contends that the order appealed from was interlocutory and therefore that any appeal was with leave to the Divisional Court pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. We disagree. The appellants were third parties or “strangers” to the matrimonial litigation in which the motion was brought. While the order was interlocutory as between the parties to that litigation, because it did not finally dispose of any issue between them, the current jurisprudence indicates that it was final as between the respondent and the appellants, for the purpose of an appeal of the order by the appellants. See Royal Trust Corporation v. Fisherman (2001), 2001 CanLII 4080 (ON CA), 55 O.R. (3d) 794 (C.A.), at para. 12.
. Vanden Bussche Irrigation & Equipment Limited v. Kejay Investments Inc.

In Vanden Bussche Irrigation & Equipment Limited v. Kejay Investments Inc. (Ont CA, 2016), which considers the law of interlocutory versus final Orders, primarily stands for the proposition that fact-findings made in a summary judgment motion (where the standard is whether there is a 'genuine issue for trial') are only binding at trial when the motion judge expressly declares them to be so in their reasons and/or the written Order:
[8] In Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375 (CanLII), this court, based on identical wording in the order, held at para. 7, that the order was not a final order because, “a decision under Rule 20 determines only that a genuine issue requiring a trial exists. Accordingly to the extent that a motion judge may purport to make findings of fact in reasons for judgment dismissing a Rule 20 motion, such findings do not have binding effect.”

[9] The court in Ashak further noted at paras. 8-11 that while a court has the power to make binding determinations of fact under rule 20.05 when dismissing a motion for summary judgment if a court proposes to exercise that power the motion judge should say so and the formal order should reflect that. A similar power to make a binding determination of law likely exists under rule 20.04(4), but again, if the motion judge purports to exercise that power, the judge should specifically invoke and reference the rule and the legal determination made should form part of the formal order.

[10] Since the decision in Ashak, there has been jurisprudence from our court explaining that in some cases to determine whether an order is truly final or interlocutory one needs to look at the reasons and determine whether a defendant has been deprived of a substantive right or defence that could resolve all or part of the proceedings: Walchuk, Estate Trustee and Houghton, [2015] O.J. No. 6492, at para. 14.

[11] In this case, the motion judge did not specifically invoke and reference the rule giving him the power to make a binding determination nor does the order taken out reflect any determination on the issue of the limitation period. Although the limitation period defence was the only issue before the motion judge and he purported to decide it, he also refused to grant summary judgment on the claim to the plaintiff and sent the matter on for trial. It does not appear that there would be any reason for him to do so unless he was of the opinion that there was a genuine issue requiring a trial respecting the limitation period.

[12] In the result, I have concluded that the motion judge’s determination that the limitation period had not run is not binding and is not a final order. Accordingly, were I to grant leave to file a notice of appeal, this court would not have jurisdiction to entertain the appeal and for this reason the motion is dismissed.
. Fram Elgin Mills 90 Inc. v Romandale Farms Limited

In Fram Elgin Mills 90 Inc. v Romandale Farms Limited (Ont CA, 2016) the Court of Appeal discusses the vexed question of when an Order below is interlocutory or final, as that distinction determines it's appeal route:
[28] An order granting leave to amend a pleading is an interlocutory order: see Dynasty Furniture Manufacturing Ltd. v. Toronto-Dominion Bank, 2015 ONCA 137 (CanLII), at paras. 5-7; Natario v. Rodriguez, 2015 ONCA 227 (CanLII), 71 C.P.C. (7th) 285, at para. 7. An order adding a party defendant is also an interlocutory order: see Hunter v. Richardson, 2013 ONCA 731 (CanLII), at para. 2. The rationale in both instances is that the litigation continues and the order made does not affect a party’s substantive rights.

[29] By contrast, an order under r. 21.01(1)(a) to determine a question of law before trial where the determination disposes of all or part of a claim or defence is final because it precludes the party from raising the issue going forward: see Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), at para. 3; Abbott v. Collins (2002), 2002 CanLII 41457 (ON CA), 62 O.R. (3d) 99 (C.A.), at paras. 5-7. Where an order deprives a party of a substantive right that could be determinative of the action, that order is final: Stoiantsis v. Spirou, 2008 ONCA 553 (CanLII), 91 O.R. (3d) 184, at paras. 19-22.

[30] The nature of the underlying motion is an important consideration in deciding whether the order is final or interlocutory. For instance, regardless of the reasons given by the judge for dismissing a motion under r. 21.01(1)(b) to strike a pleading on the ground it discloses no reasonable cause of action or defence, “it is reasonable to think that … the judge does not have the power to make a final order under that provision”: S. (R.) v. H. (R.) (2000), 2000 CanLII 17038 (ON CA), 52 O.R. (3d) 152 (C.A.), at para. 18, per Morden J.A.
. Deltro Group Ltd. v. Potentia Renewables Inc.

In Deltro Group Ltd. v. Potentia Renewables Inc. (Ont CA, 2017) yet another contribution to the vexed issue of when an order is final or interlocutory, as the distinction conditions the appeal route, the Court of Appeal stated:
[3] It is well established that the characterization of an order as being final interlocutory depends upon its legal nature rather than its practical effect. Accordingly, even where the practical effect of refusing an interlocutory injunction, may from a practical perspective effectively end some aspect of the litigation, the legal nature of such an order remains interlocutory for the purposes of appeal see: Ontario Medical Association v. Miller, 1976 CanLII 679 (ON CA), [1976] 14 O.R. (2d) 468.

[4] The request for a mandatory injunction to search and obtain documents was made within this action and the order dismissing that request is also interlocutory in nature for the purposes of appeal.
. 2441472 Ontario Inc. v. Collicutt Energy Services

In 2441472 Ontario Inc. v. Collicutt Energy Services (Ont CA, 2017), yet another contribution to the vexed issue of when an Order is final or interlocutory, as the determination conditions the appeal route, the Court of Appeal here stated:
[9] An interlocutory order is one that does not determine the real matter in dispute between the parties. It does not determine the very subject matter of the litigation, but rather only a collateral matter: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, at p. 678. The classic test is whether the order finally disposes of the rights of parties: Hendrickson, at p. 680. Furthermore, an order that disposes of an issue raised by the defence, thereby depriving the defendant of a substantive right that could be determinative of the entire action, is final: Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.).
The court also re-iterated law that fact findings made in the course of a motion for summary judgment are not binding for subsequent purposes of the case unless the motions court judge expressly declares them so:
[16] As this court noted in Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375 (CanLII), 115 O.R. (3d) 401, at para. 13, “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.” It is well-established that an appeal lies from the order, not from the reasons given by the judge making it: Ashak, at para. 13; Grand River Enterprises v. Burnham (2005), 2005 CanLII 6368 (ON CA), 197 O.A.C. 168 (C.A.), at para. 10.

[17] In the summary judgement context, this court has said that purported findings of fact or law by a motion judge who dismisses a summary judgment motion do not have binding effect in the subsequent proceeding unless the judge invokes the power to make such findings under rr. 20.04 or 20.05: Skunk v. Ketash, 2016 ONCA 841 (CanLII), 94 C.P.C. (7th) 141, at paras. 35-36. A motion judge who intends to make such findings should specifically say so, and the order should refer to the relevant rule: Skunk, at paras. 35-36.
. Sennek v. Carleton Condominium Corporation No. 116

In Sennek v. Carleton Condominium Corporation No. 116 (Ont CA, 2017) the Court of Appeal (once again) articulates the distinction between 'final' and 'interlocutory' orders, as that distinction conditions the appeal route for such orders:
[11] The distinction between a final and interlocutory order was expressed in the this court’s decision in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at pp. 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.
[12] The court approved of 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.
[13] The characterization of an order as final or interlocutory is determined by the order’s legal nature, rather than 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.
[14] In circumstances analogous to those of the present case, this court has characterized an order requiring the plaintiff to appoint a litigation guardian, and requiring the litigation guardian to appoint counsel to represent the plaintiff, as interlocutory: see Willmot v. Benton, 2011 ONCA 104 (CanLII), 11 C.P.C. (7th) 219. The order provided that if those steps were not taken within thirty days, the defendants could move without further notice to strike out the plaintiff’s pleadings and seek dismissal of the action. The court wrote at para. 3 that the “primary aspect of the order requiring the plaintiff to appoint a litigation guardian and counsel is procedural in nature and does not finally resolve an issue that goes to the merit or substance of this litigation.”

[15] A sanction for non-compliance of an interlocutory order does not alter the legal nature of the order. As Sharpe J.A. observed in Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642 (CanLII), 97 O.R. (3d) 161, at para. 26:
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 [Citation omitted.]


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