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Appeals - Final v Interlocutory (8). Gong v. OSC
In Gong v. OSC (Div Court, 2024) the Divisional Court considered the final versus interlocutory order distinction, here in a Securities Act/Capital Markets Tribunal (CMT) context:[8] Mr. Gong argues the motion judge erred in law in finding the Tribunal’s decision was not a final decision. Mr. Gong argues the Tribunal’s decision was a final decision in respect of third-party rights. He argues that if the hearing on the merits proceeds, the privacy interests of third-parties will be violated. Mr. Gong argues the motion judge failed to consider the unique purpose of the D.P. v. Wagg regime when deciding that the Tribunal’s decision was not a final decision.
[9] We do not accept Mr. Gong’s argument.
[10] The motion judge applied the correct law in deciding whether the Tribunal’s decision was final. This Court has previously found that a final decision under the Securities Act is one that determines the merits of the allegations against a defendant, including the imposition of a sanction: Cheng v. Ontario Securities Commission, 2018 ONSC 2502 (Div. Ct.). While the analysis might be different if a third-party to the proceedings was seeking to review a decision by the Tribunal that directly affects their privacy rights, the motion judge was correct in finding that Mr. Gong’s motion was premature because the Tribunal’s decision did not finally dispose of the proceedings against him: R. v. McNeil, 2009 SCC 3 at para. 9.
[11] Contrary to Mr. Gong’s submissions, the motion judge was alive to the unique nature of the issues raised by the application of the special procedure in D.P. v. Wagg. The motion judge cited another decision of this court that expressly addressed whether a decision on the application of the D.P. v. Wagg procedure is a final or interlocutory decision: Ontario (Attorney General) v. Ontario Secondray Schools Teacher Federation, 2015 ONSC 2438 (Div. Ct.).
[12] The motion judge made no error in finding that the Tribunal’s decision on Mr. Gong’s pre-hearing motion was not a final decision in this case and, as a result, this court has no jurisdiction to hear his appeal. This motion is, therefore, dismissed. . Storoszko & Associates v. 1489767 Ontario Limited [dismissal of set aside judgment]
In Storoszko & Associates v. 1489767 Ontario Limited (Ont CA, 2024) the Court of Appeal considered an appellate motion to dismiss an appeal, such appeal being brought against dismissed R59.06 [really R19.08] set aside motion, which was in turn moved to vary a (default) mortgage action.
Here the court dismisses the respondent's position that the underlying R59.06 set aside motion [really, under R19.08] was interlocutory (thus the Court of Appeal was the correct court):[2] The moving party on the motion before us, Storoszko, argues that this court lacks jurisdiction to hear Mr. Hughes’ appeal because the order under appeal is interlocutory: Gallen v. Sutherland, 2023 ONCA 170, at para. 5; Elguindy v. Elguindy, 2021 ONCA 768, at para. 4. If the order is interlocutory, then any appeal is to the Divisional Court with leave of that court under s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[3] Although Mr. Hughes brought the motion to vary the original judgment under r. 59.06, we agree with his counsel that the motion judge dealt with it as a motion to vary the judgment under r. 19.08 [SS: 'Setting Aside Default Judgment'], which expressly permits a motion to vary a default judgment. While the motion judge mistakenly referred to r. 19.02 in his reasons, his analysis in substance reflects the proper approach under r. 19.08. The factors the motion judge listed and applied were the factors that this court has set out for the determination of whether a default judgment should be set aside or varied under r. 19.08: Mountain View v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 47-49.
[4] The dismissal of a motion to vary a final judgment is axiomatically itself a final judgment. Therefore, the appeal lies to this court. The motion to quash is dismissed.
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