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Appeals - Combining Appeals from Different CourtsThis issue is about combining courts within the same appellate case. It's need can arise when the Rules require that one appeal goes the Divisional Court (as with interlocutory orders below) and another to the Court of Appeal (as with final orders below) - and a party wants to do both. The Rules of Civil Procedure (RCP) provides for such combining [CJA 6(2) and 19(2)], but these provisions are only intended for situations when the party commences both appeals - almost accidentally. These rules allow the courts to merge the matters and save the court time. The real problem IMHO is that when a party follows the Rules properly in this situation, it results in a lot of unnecessary work for them - so they sensibly try and duck it. The result is the case law mess that you see below [starting with the Lax case in 2004]. The issue of re-constituting appellate courts also bears on his [see that topic, also in this appeal-routes section].
MORE CASES
Part 2
. FNF Enterprises Inc. v. Wag and Train Inc.
In FNF Enterprises Inc. v. Wag and Train Inc. (Ont CA, 2023) the Court of Appeal explains the 'default' appeal route, when different appealed orders have conflicting separate appeal routes [CJA 6(2)]:Is the Appeal Properly in this Court?
[7] Section 255 of the OBCA provides that an appeal from any order made under that Act lies to the Divisional Court. Because the statement of claim included a claim for oppression remedy relief, and that claim was struck, the question of the proper appeal route arises.
[8] The order of the motion judge struck the entire claim against Ms. Ross, which was asserted on bases that went beyond the oppression remedy. In such a case, the appeal route depends on the source of authority for each aspect of the order. “If … the source of the authority … is the common law or equity, as opposed to the OBCA, then the appeal lies properly to this court”: Buccilli v. Pillitteri, 2016 ONCA 775, 410 D.L.R. (4th) 480, at para. 19. If part of the relief is grounded in the OBCA, but other aspects of the order have a common law or equitable source, the entire order is appealable to this court: Buccilli, at para. 22; Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(2).
[9] Here, although the striking of the oppression remedy claim may be an order under the OBCA, the striking of the claim to lift the corporate veil engages a common law or equitable doctrine and therefore has a source other than the OBCA.
[10] Therefore, this court has jurisdiction to hear the appeal. . Johnson v. Jensen
In Johnson v. Jensen (Div Court, 2023) the Divisional Court considered a (what must be a commercial) tenancy appeal from a Superior Court judge of a $47.3k monetary order and an order for vacation of the tenancy. This appeal was brought before the Divisional Court, though that court transferred it to the Court of Appeal [under CJA 110] on the reasoning that - while the Divisional Court had appellate jurisdiction for orders up to $50,000 - the Divisional Court did not have jurisdiction over the termination order [by virtue of CJA 6(1)(b)]. The court also noted that the Court of Appeal had supplementary Divisional Court jurisdiction [under CJA 6(2)] to hear the monetary order as well:[1] The Tenants have appealed the order of Vermette J. dated July 22, 2022. In that order, Vermette J. ordered the Tenants to pay the Landlords $47,300 in rental arrears and ordered them to vacate the unit by August 14, 2022. Both aspects of the order were final.
[2] The appeal was filed with the Divisional Court. The preliminary issue before us is whether the Divisional Court has jurisdiction over this appeal, given the fact that the order in question includes an eviction order. Pursuant to s. 6(1)(b) of the Courts of Justice Act an appeal of a final order of a judge of the Superior Court lies to the Court of Appeal. Section 19(1.2) of the Courts of Justice Act provides that the Divisional Court has jurisdiction to hear an appeal from the final order of a Superior Court judge involving an amount of less than $50,000. It does not give the Divisional Court jurisdiction over an eviction order.
[3] There is a dispute between the parties as to whether this appeal is an appeal from a portion of Vermette J.s order relating to the payment of arrears or just an appeal from the eviction order. It is not necessary for us to resolve this dispute as s. 6(2) of the Courts of Justice Act states that the Court of Appeal has jurisdiction “to hear and determine an appeal that lies to the Divisional Court… if an appeal in the same proceeding lies to and is taken to the Court of Appeal.” Thus, the Courts of Justice Act is clear; since the order in question includes an eviction order, this appeal lies to the Court of Appeal.
[4] For these reasons, pursuant to s. 110 of the Courts of Justice Act, we are ordering that this appeal be transferred to the Court of Appeal. . Billimoria v. Mistry
In Billimoria v. Mistry (Ont CA, 2022) the Court of Appeal combined appeals from two different court levels:[21] Although appeals from orders made under the Partition Act lie to the Divisional Court, the appeal from the final judgment determining the ownership of the property lies to this court, and this court has jurisdiction to deal with all the issues on appeal pursuant to s. 6(2) of the Courts of Justice Act. . Blair v. Ford
In Blair v. Ford (Ont CA, 2021) the Court of Appeal considered the situation where appeals of interlocutory orders where made for the first time at the Court of Appeal, rather than the Divisional Court, with leave [under RCP 19(1)(b)]:(1) Does this court have jurisdiction to hear the appeal from the preliminary orders?
[25] Before hearing oral submissions with respect to the appeal, the parties were cautioned by the Senior Legal Officer that this court may not have jurisdiction over the preliminary orders. The parties agreed to file written submissions with respect to jurisdiction. The court reviewed the written submissions and heard oral submissions on the matter. The parties were advised during the hearing that, for reasons to follow, this court lacks jurisdiction with respect to the preliminary orders.
[26] The preliminary orders were with respect to refusals to answer questions and provide certain legal documents (November 23, 2020) and with respect to further cross-examination (November 30, 2020). They are interlocutory orders. An appeal from an interlocutory order of a judge lies to the Divisional Court with leave pursuant to s. 19(1)(b) of the Courts of Justice Act. Leave must be sought within 15 days pursuant to r. 61.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Leave was not sought.
[27] The appellant submits that the interlocutory orders are interrelated with the appeal and that leave would “inevitably” have been granted. He argues that this court should therefore assume jurisdiction. This argument was rejected for two reasons.
[28] First, this proposal has been repeatedly rejected by this court. The court said the following in Mader v. South Easthope Mutual Insurance Company, 2014 ONCA 714, 123 O.R. (3d) 120, at para. 55:Only if leave is obtained from the Divisional Court can the appeal be combined with an appeal that lies to Court of Appeal in the same proceeding under s. 6(2) of the Courts of Justice Act: Cole v. Hamilton (City) (2002),2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284, [2002] O.J. No. 4688 (C.A.), at paras. 11, 15. And said the following in Brown v. Hanley, 2019 ONCA 395, at para. 19:In general, where an order has both interlocutory and final portions, the appeal lies to this court only from the final portion of the order: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.), at para. 9. Leave to appeal from the interlocutory portion must be obtained from the Divisional Court, at which point a party may move to have the appeals heard together in this court: Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at para. 25; Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6 and 19(1)(b). [29] Second, the preliminary orders were dated November 23 and 30, 2020. The s. 137.1 motion was heard on December 4, 2020. Had the interim relief sought been integral to the main motion, the appellant could have – but did not – ask for an adjournment so that leave to the Divisional Court could be sought. It is not appropriate to await the outcome of the motion to then assert that the issue is intrinsically interrelated. . Wright v. Strauss
In Wright v. Strauss (Ont CA, 2019) the Court of Appeal dealt with a knotty appeal route jurisdictional issue. Following the reasoning along is good exercise!:[1] The appellant appeals from the order (“Order”) of the motion judge, dismissing the application he commenced in 2016 against his daughters, on their own behalf and as trustees of the Wright Family Trust (“Trust”). For the reasons that follow, we conclude that this court does not have jurisdiction to hear this appeal, and we order that this appeal be transferred to the Divisional Court.
[2] The appellant also appealed from a second order (“Second Order”) of the motion judge, made at the same time, involving the same parties, and addressed in the same set of reasons as the Order. The appeal of the Second Order was properly made to this court and we dismissed that appeal: Wright v. Urbanek, 2019 ONCA 823.
[3] Pursuant to s. 255 of Ontario’s Business Corporations Act, R.S.O. 1990, c. B.16, as amended, (“OBCA”), an appeal lies to the Divisional Court from an order made under the OBCA. The Order finally resolved issues in an oppression application brought under the OBCA and the proper route of appeal is to the Divisional Court: Ontario Securities Commission v. McLaughlin, 2009 ONCA 280, 248 O.A.C. 54, at para. 16.
[4] While the appellant concedes that an appeal from the Order would normally be to the Divisional Court, he asserts that s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, and r. 6.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, permit this court to hear his appeal of the Order. Alternatively, he argues that this is one of those exceptional cases where it would be appropriate for Chief Justice of the Superior Court of Justice to designate this court as a panel of the Divisional Court for the purpose of hearing and determining the appeal.
[5] We reject these arguments.
[6] First, s. 6(2) of the Courts of Justice Act permits this court to hear and determine an appeal that lies to the Divisional Court if an appeal in the same proceeding lies to and is taken to this court. But the two appeals are not in the same proceeding. Although the motion judge released only one set of reasons, he issued two orders for two factually related but legally distinct proceedings, each with its own originating process: the Order, striking a notice of application regarding the transfer of a mortgage from a family company to the Trust; and the Second Order, striking a statement of claim challenging the validity of the Trust.
[7] Second, r. 6.01(1) provides that “[w]here two or more proceedings are pending in the court” the court may, in the circumstances set out in that rule, order that the proceedings be heard together. However, this rule applies to proceedings in the same court, not proceedings in different courts: Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839, at para. 11.
[8] Finally, while the combined effect of ss. 13 and 18 of the Courts of Justice Act enables three judges of the Court of Appeal to sit as a panel of the Divisional Court with the consent of the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario, as Trotter J.A. notes in Tomec, at para. 14, this court rarely reconstitutes itself as the Divisional Court. Doing so involves bypassing the Divisional Court. We are not persuaded that this is one of those rare instances where this court should reconstitute itself as the Divisional Court.
[9] This is not a case where the jurisdictional issue was noticed only after the appeal had been argued: see Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 2001 CanLII 7060 (ON CA), 54 O.R. (3d) 76 (C.A.), at para. 12. Here, the court notified the parties of the potential jurisdictional problem nearly four months before the scheduled hearing date and advised them that it is not this court’s practice to take jurisdiction to hear an appeal if it concludes that the appeal was brought in the wrong court. The parties made no submissions to the court in response to the court’s letter notifying the parties of the potential jurisdiction problem.
[10] Moreover, it is not clear that the delay resulting from a transfer of the appeal of the Order to the Divisional Court will result in any “real” delay. In oral submissions, counsel for both parties agreed that if the appellant prevailed on his appeal from the Order, his application should be stayed pending completion of the steps remaining to be taken pursuant to the order of Conway J., dated October 7, 2016, made in the oppression application brought against the appellant by his daughters. . 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. . Azzeh v. Legendre
In Azzeh v. Legendre (Ont CA, 2017) the Court of Appeal makes the following comments regarding combining final-interlocutory appeals from the Divisional Court:[25] In general, where an order has both final and interlocutory aspects, the appeal lies to this court only from the final portion of the order: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.). Leave to appeal from the interlocutory portion must be obtained from the Divisional Court, at which point the appellant may move to have the appeals heard together in this court.
[26] However, in Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.), the court heard the appeal from both the final and interlocutory aspects of an order where “because the two issues are so interrelated … once the first issue was before this court, leave would inevitably have been granted on the second.” That is the case here. Whether the City was properly added as a defendant depends on whether the action against it is statute-barred. Therefore, both aspects of the appeal were heard by this court. . V Hazelton Limited v. Perfect Smile Dental Inc.
In V Hazelton Limited v. Perfect Smile Dental Inc. (Ont CA, 2019) the Court of Appeal held that it did have jurisdiction under CJA 6(2) to hear an appeal case where jurisdiction over multiple issues was split [SS: it seems to skip over the CJA 6(2) requirement that both 'combined' appeals be afoot, and does not even mention Lax v Lax (Ont CA, 2004)]:(i) Jurisdiction of this Court
[20] Perfect Smile raised a threshold issue about this court’s jurisdiction to hear the appeal. It submitted that where a judge grants or refuses a writ of possession over leased premises, any appeal lies to the Divisional Court, pursuant to s. 78 (1) of the CTA, which provides:78. (1) An appeal lies to the Divisional Court from the order of the judge granting or refusing a writ of possession. [21] During oral argument this jurisdictional objection was dismissed with reasons to follow. It may be dealt with summarily.
[22] The application judge refused an order for delivery of vacant possession, which is arguably captured by this section. However, he also refused declaratory relief and declined to order that an arbitrator be appointed. These aspects of the decision are beyond the ambit of s. 78.
[23] Pursuant to s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, this court retains the discretion to combine and hear all the issues raised on this appeal. I would exercise that discretion, given the interconnected nature of the issues and the resultant risk of inconsistent judgments. . P1 v. XYZ School
In P1 v. XYZ School (Ont CA, 2021) the Court of Appeal considered an unusual appeal combination under CJA 6(2) [SS: could the CA have re-constituted itself as both courts under CJA 13(2) and CJA 18(3)?]. The court's result dispenses with the CJA 6(2) requirement that appeals from both the 'combining' courts must be commenced, or at least a motion for leave to appeal being afoot:[34] The plaintiffs allege that the order as it applies to them is final because their right to freedom of expression is affected too. I do not agree. The matter between the plaintiffs and the defendants has not yet been determined.
[35] As to the plaintiffs, the order is not final. That said, the plaintiffs wish to continue their appeal. They submit that, if the order is considered interlocutory in relation to them, this court should assume jurisdiction under s. 6(2) of the Courts of Justice Act. That section provides:(1) Combining of appeals from other courts
(2) The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal. R.S.O. 1990, c. C.43, s. 6 (2); 1996, c. 25, s. 9 (17). [36] The appeal by the Toronto Star and the plaintiffs is in the same proceeding and deals with the same order. But this court has repeatedly said that, for s. 6(2) to apply, the appellant must have sought and obtained leave from the Divisional Court: see Blair v. Ford, 2021 ONCA 841, at para. 28. They have not done so.
[37] However, this court may assume jurisdiction over the interlocutory order, even if leave from the Divisional Court has not been sought, if the interlocutory and final orders are so interrelated that leave would inevitably have been granted on the interlocutory issue: see Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.), at para. 9.
[38] Here, we have both a final and interlocutory order. The final order is the non-publication and sealing order as it applies to the Toronto Star. The interlocutory order is the non-publication and sealing order as it applies to the plaintiffs.
[39] This is exactly the type of case that the Lax test, even if read narrowly, is meant to capture. The two appeals for each Toronto Star and the plaintiffs deal with the same non-publication and sealing order. In the unique circumstances of this case, it makes no administrative sense to have one portion of the appeal proceed at this court and require that leave be sought for the interlocutory portion. Inevitably, leave will be granted because the Toronto Star portion of the appeal will proceed at this court, and the two appeals are substantively the same.
[40] I would therefore, in these unusual circumstances, allow the appeal to proceed in this court and to be placed on this list to be argued with the Toronto Star appeal. . Mandel v. 1909975 Ontario Inc.
In Mandel v. 1909975 Ontario Inc. (Ont CA, 2021) the Court of Appeal considered it's appellate jurisdiction under CJA 6(2):(1) Issue 1: Is the appeal from the application judge properly brought to this court or to the Divisional Court?
[23] In their application to the Superior Court, the appellants sought a declaration under s. 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43, [SS: a declaration] that the shares of the Child Corporations were not validly issued under s. 23(3) of the OBCA because the subscription price was not paid, and an order for rectification of the share registers under s. 250(1) of the OBCA.
[24] Section 255 of the OBCA provides that an appeal lies to the Divisional Court from any order made by the Superior Court under the OBCA. In this case, while the appellants sought relief under s. 250(1) of the OBCA, they were obliged to seek a declaration under s. 97 of the Courts of Justice Act in order to obtain the relief they sought as a result of the application of s. 23(3), because no order for relief for failure to comply with that section is mandated by the OBCA. An appeal from an order that grants or refuses a declaration of the Superior Court lies to the Court of Appeal. As a result, s. 6(2) of the Courts of Justice Act applies to this appeal:The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal. [25] The court therefore accepts the submission of all parties that this court has the jurisdiction to hear this appeal. . Martin v. 11037315 Canada Inc.
In Martin v. 11037315 Canada Inc. (Ont CA, 2021) the Court of Appeal held that it had jurisdiction under CJA 6(2) to hear an appeal from an interlocutory order where it also advanced an appeal from final orders that were "so interrelated" as to be efficiently considered together:[11] The December 23, 2020 order has both interlocutory and final elements. An order setting aside a default judgment is an interlocutory order: Laurentian Plaza Corp. v. Martin (1992), 1992 CanLII 7561 (ON CA), 89 D.L.R. (4th) 50 (Ont. C.A.) at p. 53. As such, leave to appeal to the Divisional Court pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and r. 62.02(1) of the Rules of Civil Procedure would be required, leave that may not be granted by this court.
[12] However, the remaining portions of the December 23, 2020 order are final in nature and the order finally disposed of the application.
[13] In Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 239 D.L.R. (4th) 683 (Ont. C.A.), at para. 9, this court held that leave to appeal from an order of a judge of the Superior Court is not required where the issues in an appeal from an order having final and interlocutory aspects are so interrelated that leave would inevitably have been granted. In that case, the defendants moved for summary judgment seeking to dismiss the plaintiff’s action as being statute-barred by the applicable limitation period. The motion judge determined that the action was not statute-barred. This determination gave rise to a final order on the authority of Abbott v. Collins, (2002), 2002 CanLII 41457 (ON CA), 62 O.R. (3d) 99 (C.A.). The motion judge went on to hold that even if the limitation period applied, there was a discoverability issue that required a trial. As Feldman J.A. noted on behalf of the court, the second determination was interlocutory:Although the second issue would, if brought as a stand-alone appeal to the Divisional Court, require leave of that court, because the two issues are so interrelated, we were able to proceed to hear the two appeals together in accordance with s. 6(2) of the [CJA], on the basis that once the first issue was before this court, leave would inevitably have been granted on the second. [14] This court proceeded to hear and determine both issues.
[15] Lax has since been followed in Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, leave to appeal refused, [2017] S.C.C.A. No. 289. This court acknowledged that para. 1 of the formal order, which granted leave to add the City of Sudbury and others as defendants, was interlocutory. Paragraph 2, which made other amendments consistent with the addition of the defendants, was also interlocutory. However, para. 3, which granted a declaration that the action was not statute-barred, was final. While normally leave must be obtained from the Divisional Court before an appeal from an interlocutory order can be combined with an appeal from a final order, leave was not required as this case was similar to Lax. The court explained: “[w]hether the City was properly added as a defendant depends on whether the action against it is statute-barred. Therefore, both aspects of the appeal were heard by this court”: at para. 26. See also Abbasbayli v. Fiera Foods Company, 2021 ONCA 95, at para. 17; 2099082 Ontario Limited v. Varcon Construction Corporation, 2020 ONCA 202, 97 C.L.R. (4th) 26, at para. 17; and Cooper v. The Laundry Lounge, Inc., 2020 ONCA 166, at para. 2.
[16] As for the January 29, 2021 order, an order dismissing a motion under r. 59 to set aside or vary an order is interlocutory: Antique Treasures of the World Inc. v. Bauer, 2003 CanLII 35349 (ON CA). However, again, the issues raised by that order are closely related to those in the December 23, 2021 order.
[17] In the circumstances, given the interrelationship of the issues engaged by the two orders the moving parties seek to appeal, and based on the aforementioned authorities, I conclude that it is at the very least arguable that this court has jurisdiction over the appeal. . Abbasbayli v. Fiera Foods Company
In Abbasbayli v. Fiera Foods Company (Ont CA, 2021) the Court of Appeal applied CJA 6(2) to allow it to consider aspects of an appeal that fell both in the Divisional Court [here OBCA s.255 re appeal of court orders] and itself:D. JURISDICTION to hear the appeal
[14] As a preliminary issue, the respondents raise two objections to this court’s jurisdiction to deal with certain issues on this appeal. First, they assert that the order striking the s. 131 OBCA claim is an “order made under” the OBCA which, pursuant to s. 255 of the OBCA, must be appealed to the Divisional Court. Second, they say that the motion judge’s order striking pleadings in the statement of claim with leave to amend 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 (“CJA”), as these parts of the order are interlocutory.
[15] It is not always clear whether an order dealing with an OBCA claim at an early stage is an “order made under” the OBCA. The question is whether the court, in making the order, was exercising a power sufficiently close to a legislative source under the OBCA or whether the source of authority is the common law or equity as opposed to the OBCA: see Ontario Securities Commission v. McLaughlin, 2009 ONCA 280, 248 OA.C. 54, at para. 16; Buccilli v. Pillitteri, 2016 ONCA 775, 410 D.L.R. (4th) 480, at para. 19. In McLaughlin O’Connor A.C.J.O. held that a final order dismissing a motion to amend a statement of defence to plead certain defences against an oppression claim was such an order, such that the proper route of appeal was to the Divisional Court. In Buccilli, a panel of this court concluded that an order requiring certain interim payments to be made pending a later trial “to determine the value of the plaintiffs’ declared interests and the appropriate equitable and monetary remedies under the [OBCA]” was rooted in a common law or equitable claim, such that s. 255 of the OBCA did not apply.
[16] It is unnecessary to determine whether the part of the motion judge’s order that dismissed the appellant’s s. 131 OBCA claim, standing alone, is an “order made under” the OBCA and appealable to the Divisional Court under s. 255. Section 6(2) of the CJA permits this court to hear and determine an appeal that lies to the Divisional Court “if an appeal in the same proceeding lies to and is taken to the Court of Appeal.” This was an alternative basis for this court having taken jurisdiction in Buccilli, and it is equally available in the present case where there is also an appeal from the final order striking the s. 81 ESA claim.
[17] Section 6(2) also permits this court to take jurisdiction over the appeal of the interlocutory aspects of the order of the motion judge because there are aspects of the order that are appealable to this court. The motion judge struck certain claims without leave to amend (a final order) and other claims and paragraphs with leave to amend (an interlocutory order). This court can take jurisdiction under s. 6(2) where the issues relating to the final and interlocutory aspects of the order are so interrelated that once the issues arising from the final aspects of the order were before this court, leave would inevitably have been granted on the issues arising from the interlocutory portions: see Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 239 D.L.R. (4th) 683 (Ont. C.A.), at para. 9; Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at paras. 25-26, leave to appeal refused, [2017] S.C.C.A. No. 289; 2099082 Ontario Limited v. Varcon Construction Corporation, 2020 ONCA 202, 97 C.L.R. (4th) 26, at para. 17; and Cooper v. The Laundry Lounge, Inc., 2020 ONCA 166, at para. 2. This is such a case. The order under appeal arose out of a motion to address the sufficiency of a single pleading – the statement of claim in a wrongful dismissal action.
[18] Accordingly, I would not give effect to the respondents’ challenge to this court’s jurisdiction over the appeal of certain aspects of the motion judge’s order, and I will now proceed to consider and determine all of the issues raised in this appeal
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