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Appeal - Final v Interlocutory (9). MarshallZehr Group Inc. v. Zukowski [when interlocutory aspects intertwined with final, CA may hear]
In MarshallZehr Group Inc. v. Zukowski (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal from a summary judgment where the "motion judge held that a personal guarantee signed by the appellants to secure a project financing loan from the respondent was valid and enforceable":[4] The respondent points out that the order dismissing the appellants’ motion to cross-examine Mr. Hayes is interlocutory and says that the appellants should have sought leave from the Divisional Court to appeal it. We disagree. The motion judge’s rationale for dismissing the appellants’ motion forms part of his reasons for granting the summary judgment motion. This court can take jurisdiction over the appeal of the interlocutory aspects of an order if they are so interrelated with the final order that there is a good reason to hear the appeals together: Halton Standard Condominium Corporation No. 550 v. Del Ridge (Appleby) Inc., 2023 ONCA 753, 169 O.R. (3d) 556, at para. 16; Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (Ont. C.A.), at para. 9. . Barros v. Jimenez [Div Ct to Sup Ct]
In Barros v. Jimenez (Div Ct, 2025) the Divisional Court dismissed an appeal, here from "an order of Associate Justice Josefo dismissing their motion seeking to withdraw admissions from their statement of defence and counterclaim in the underlying action".
Here the court usefully considers an appeal route issue, where the choice was to the Divisional Court [CJA s.19(1)(c) and RCP 61.04 (final)] or to the Superior Court [CJA 17(a) and RCP 62.01(2) (interlocutory)] (the court found that the appeal route used was in error but re-constituted itself as the Superior Court and decided the issue):Is the appeal within the jurisdiction of the Divisional Court?
[8] The respondents submit this appeal is not within the Divisional Court’s jurisdiction because the order addressed a pleading amendment and did not finally dispose of the matter. The appellants disagree. They submit the order is final because it forever bars them from putting forward a defence.
[9] I agree with the respondents. The two paragraphs that were sought to be withdrawn contained factual admissions about the parties entering into two written agreements. They were not allegations as to the appellants’ legal position. Unlike in Canadian Imperial Bank of Commerce v. Lido Drywall Inc., 1995 CarswellOnt 2359 (Div. Ct.), where the defendants were not permitted to validate an entirely new statement of defence, the appellants here have not shown how the factual admissions in the two disputed paragraphs foreclose any particular legal defence. On this basis, in my view, the appeal should have been brought in the Superior Court of Justice.
[10] However, I am also a judge of the Superior Court of Justice and, as a matter of efficiency, will decide the appeal in that capacity. To the extent it is necessary to do so, I grant the appellants an extension of time with respect to filing this appeal in the Superior Court of Justice, since an appeal of an interlocutory order must be filed within seven days under r. 62.01(2) compared to 30 days for an appeal from a final order to the Divisional Court under r. 61.04. . A. v. B. [sealing orders]
In A. v. B. (Ont CA, 2025) the Ontario Court of Appeal granted a motion to quash a family law appeal, here from a motion order "declining to seal or otherwise restrict public access to the record or decisions in the Superior Court proceeding".
The court usefully considers the distinction between interlocutory and final orders, here in a sealing order context:Interlocutory and Final Orders
[16] Section 6(1) of the Courts of Justice Act provides that appeals from final orders of the Superior Court lie to this court, while s. 19(1)(b) provides that appeals of interlocutory orders lie, with leave, to the Divisional Court.
[17] In Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16, leave to appeal refused, [2021] S.C.C.A. No. 373, Jamal J.A. (as he then was) articulated the main principles for determining whether an order is final or interlocutory:1. An appeal lies from the court’s order, not from the reasons given for making the order.
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.”
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.”
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.” In other words, the characterization of the order depends upon its legal nature, not its practical effect. [Citations omitted.] [18] An order is interlocutory if the merits of the case remain to be determined: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678; Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 1998 CanLII 4519 (ON CA), 116 O.A.C. 103 (C.A.), at para 13. Conversely, final orders determine “the very subject matter of the litigation – or any substantive right to relief” (Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16); address the “substantive merits” (Sun Life, at para. 13); or finally dispose of an issue raised by the defence depriving the defendant of a right that could be determinative of the entire action (Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), at p. 324).
[19] This court has held that “sealing orders are normally interlocutory as concerns the parties to the litigation”: P1 v. XYZ School, 2021 ONCA 901, 160 O.R. (3d) 445, at para. 23. Similarly, an order refusing to grant a sealing order at the request of a party is treated as interlocutory: Paulpillai Estate, at para. 38. Thus, in Aquino v. Aquino, 2022 ONCA 541, where a sealing order had been obtained without notice to the media but was then set aside, this court quashed an appeal by a party from the setting aside of the sealing order, stating, “[t]he order setting aside the sealing order does not determine the subject matter in the dispute in the litigation. The privacy rights asserted by Mr. Aquino are collateral to the main action”: at para. 11. Similarly, in S.E.C. v. M.P., 2022 ONCA 905, this court confirmed that orders granting or refusing sealing orders (as they pertain to the parties) are interlocutory, distinguishing the sealing order in that case because it was part of a final disposition of a proceeding: at para. 2.
[20] The situation is different when a sealing order is granted and a media organization, who opposed it being granted but is otherwise a stranger to the litigation, seeks to appeal. That is because when a non-party’s substantive rights are finally determined, an order may be considered final as against them, even if considered interlocutory as against the parties: XYZ School, at para. 23. In XYZ School, the order under appeal determined the constitutional rights of the media and was therefore final in relation to the media, but not as it concerned the parties. At para. 19 of that case, Benotto J.A. set out the following guiding principles:1) A final order must deal with substantive rights.
2) All orders directed to non-parties are not necessarily final.
3) To be final, an order directed to non-parties must determine non-parties’ substantive rights. [21] In keeping with the principles set out in Paulpillai, it is the legal nature of the order, not its practical effect, which drives the analysis. In J.M. v. B.S., 2024 ONCA 727, this court recognized that even where the effects of an order may be irreversible, the order may nevertheless be interlocutory. In that case, the mother argued that an order requiring the child to be vaccinated was final on the basis that it could not be undone. This court disagreed, stating at para. 11: “[m]any interim or interlocutory decisions give parties the ability to do things that cannot be undone, but this does not make the order final.” . KE v. 3270679 [misnomer]
In KE v. 3270679 (Ont Divisional Ct, 2025) the Divisional Court dismissed an appeal from interlocutory motion orders regarding pleadings and adding parties.
Here the court considered an order "regarding the substitution or addition of parties on the basis of misnomer" to be final:[19] An associate justice’s decision regarding the substitution or addition of parties on the basis of misnomer has been considered a final decision and appealed to a single judge of the Divisional Court: Reimer v. City of Toronto, 2023 ONSC 484 (Div. Ct.) and Streamline Foods Ltd. v. Jantz Canada Corporation, 2011 ONSC 1630 (Div. Ct.), aff’d 2012 ONCA 174. . Crowley v. Crowley [dismissal for order non-compliance]
In Crowley v. Crowley (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from an estates application order "dismissing [the applicant's] application challenging the validity of his deceased mother’s will".
Here the court considers when an order dismissing an application for non-compliance with a representation order is final or interlocutory:[2] As a preliminary matter, we disagree with the respondent’s submission that this court does not have jurisdiction over the appeal. The order dismissing Mr. Crowley’s application is a final order because it finally dismissed his application. The decision in Sennek v. Carleton Condominium Corporation No. 116, 2017 ONCA 154, at para. 15, which the respondents rely on, holds that a procedural order whose ultimate sanction for non-compliance is dismissal is an interlocutory order. It does not, as the respondents contend, stand for the proposition that an order dismissing a proceeding for failure to comply with an interlocutory order is itself an interlocutory order. Given that the motion judge’s order dismissing Mr. Crowley’s application is a final order, this court has jurisdiction to decide the appeal. . Ye v. Turton
In Ye v. Turton (Ont CA, 2025) the Ontario Court of Appeal considered the distinction between an interlocutory and a final order, here for appeal route purposes:[8] An order is interlocutory where it does 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; Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16; Heegsma v. Hamilton (City), 2024 ONCA 865, at para. 12.
[9] The application judge’s order is interlocutory. It is clear from the wording of the order, the application judge’s reasons, and the nature of the proceedings, that the order determines no substantive rights of the appellant. The appellant remains free to file a fresh application seeking the same relief as the first application. The only requirements are that he give notice to the property owner and that he provide additional evidence.
[10] The appellant relies on this court’s decision in Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.) in support of his contention that the application judge’s order is a final order because she dismissed the application.
[11] The appellant’s reliance on Buck Bros. is misplaced, both in terms of the legal proposition it stands for, and the facts in Buck Bros. that led to the conclusion that the order in that case was final.
[12] Buck Bros. involved an appeal from a motion judge’s order holding that the conditions in a joint venture agreement for a dispute about payment to be submitted for arbitration had been satisfied. Therefore, the dispute had to be resolved through arbitration, rather than through a court proceeding. This court held that the order in Buck Bros. was a final order because the order was a final determination of the matter in dispute before the court – namely, whether the conditions had been satisfied to submit the matter to arbitration rather than to the court. It did not matter that the underlying dispute about payment had not yet been resolved and would be resolved in the arbitration proceeding.
[13] In contrast, in this case, although the application was dismissed, the order made was without prejudice to the appellant’s right to bring a fresh application seeking the same relief, in the same forum, as the original application. As such, the application judge’s order had no impact on the matter in dispute in the application – whether either the appellant or the respondent are entitled to any portion of the surplus funds after the property was sold under power of sale. The application judge’s order determined no substantive right of the appellant in relation to his entitlement in that regard.
[14] Buck Bros. does not stand for the proposition that every time an order in relation to an application contains the words “the application is dismissed” it is a final order. While it will generally be the case that where an application is dismissed, the order will be final, it is not invariably so. Rather, as the jurisprudence of this court has repeatedly affirmed, to determine if an order is final or interlocutory, the appellate court must examine the terms of the order, the motion or application judge’s reasons, the nature of the proceedings giving rise to the order, and any other relevant contextual factors: Paulpillai Estate, at para. 16; Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, 142 O.R. (3d) 317, at para. 7; Beaver v. Hill, 2019 ONCA 520, at paras. 13-15.
[15] We note that the effect of the application judge’s order is the same as if she had chosen to adjourn the application sine die, and directed the appellant to give notice to the property owner and to supplement the evidentiary record on the application regarding the value of the third mortgage as of the closing date of the sale of the property. The fact that the application judge chose to dismiss the application without prejudice to the appellant’s right to bring a fresh application does not change the effect of her order – it determined no substantive rights of the appellant. We note, in particular, that nothing in the order of the application judge limited the substance of the claim the appellant may advance in the fresh application. . Baybourdi v. Starkman Barristers
In Baybourdi v. Starkman Barristers (Ont CA, 2024) the Ontario Court of Appeal quashed an appeal, here where the appellant lawyer was challenging "an order that the appellant’s accounts were to be assessed pursuant to the Solicitor’s Act". The court found such an order to be interlocutory, and properly brought before the Divisional Court:[1] The application judge made an order that the appellant’s accounts were to be assessed pursuant to the Solicitor’s Act, R.S.O. 1990, c. S.15. The appellant seeks to appeal that order to this court.
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[3] After considering the parties’ submissions, we have concluded that this court does not have jurisdiction over the proposed appeal because the order referring the accounts for assessment is interlocutory.
[4] The motion judge’s order does not finally determine the real issue between the parties. Rather, the issue of whether the contested accounts should be referred for assessment is a preliminary procedural matter. As this court observed in Durbin v. Brant, 2017 ONCA 463, at para. 6, which was also a proposed appeal from an order referring a solicitor’s accounts for assessment, “[t]he appellant has not been deprived of a substantive right because he is not precluded from defending the quantum of his account. That is the real matter at issue between the parties and it has yet to be determined.”
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[6] An appeal from an interlocutory order 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. This court therefore does not have jurisdiction over this proposed appeal. . Canada One Family Network v. Cach Family Network
In Canada One Family Network v. Cach Family Network (Div Court, 2024) the Ontario Divisional Court considered whether the order under examination was final or interlocutory, an issue which here turned on whether a sought amendment was of a "substantive rights to relief (in the case of a plaintiff) or a substantive defence (in the case of a defendant)":[22] The applicable test on the issue before me is not in issue. In Sun Life Assurance Co. v. York Ridge Developments Ltd., 1998 CanLII 4519 (ON CA), the Court of Appeal held:Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), clarified the application of Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.) as to what is a final determination of the rights of the parties. As stated in Holmsted and Watson on Ontario Civil Procedure at 62-24: “Ball holds that what the Hendrikson test really means is that to be final an order must deal with the substantive merits as opposed to mere procedural rights, no matter how important the procedural rights may be. The test focuses on whether the order under appeal finally disposes of the rights of the parties, in the sense of substantive rights to relief (in the case of a plaintiff) or a substantive defence (in the case of a defendant).” An order granting or refusing an application for a stay of execution on a judgment does not determine any substantive rights between the parties.
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