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Appeals - Interlocutory Orders. Khani v. Araghi
In Khani v. Araghi (Ont CA, 2025) the Ontario Court of Appeal dismissed a family law appeal from both a summary judgment and a trial ruling. Here the issue arose as to whether the appeal of the summary judgment motion and the trial ruling could be combined, or whether they had to be advanced separately - in which case the motion appeal was out of time (which it was):(1) Appeal from the motion judge’s decision
[33] Dr. Araghi argues that the motion judge erred in finding that the separation agreement was valid. Specifically, she argues that the motion judge erred in limiting her analysis to the issue of whether Dr. Araghi had signed the agreement rather than considering whether the agreement was valid given the evidence that some of its terms were unenforceable. Dr. Araghi further argues that the motion judge erred in limiting the evidence that could be called at trial to the issue of whether the escrow condition was met or waived.
[34] Mr. Khani submits that Dr. Araghi cannot appeal the motion judge’s order because she did not initiate her appeal within the time prescribed for doing so. I agree.
[35] Dr. Araghi argues that she is entitled to challenge the motion judge’s order because it was in the nature of a mid-trial ruling rather than a final order. I disagree. In my view, the motion judge’s order cannot be characterized as a mid-trial ruling. As this court explained in Harris v. Leikin Group Inc., 2014 ONCA 479, 120 O.R. (3d) 508, at para. 46, by contemplating that a judge hearing a motion for summary judgment can order the trial of an issue and make directions for the trial, r. 20.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the civil equivalent of r. 16(9) of the Family Law Rules) “recognizes the existence of two discrete phases of the proceeding: a pre-trial phase when directions for trial are made and then the trial itself.” Accordingly, the motion judge’s order, which provided pre-trial directions, does not fall “within the trial proper so as to permit a party to sit on a right of appeal to be used if the party is unsuccessful at trial.” Since Dr. Araghi failed to commence her appeal from the motion judge’s order within the time prescribed in the Rules of Civil Procedure, she is now precluded from challenging that decision. . Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC [interlocutory evidence appeals]
In Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC (Fed CA, 2024) the Federal Court of Appeal distinguishes the appealability of interlocutory evidence orders made pre-trial, from those made during a trial - the latter of which are not typically appealable:[11] As a general rule, this Court does not entertain an appeal from an evidentiary ruling made during a trial, regardless of whether the motion is formal or informal, rendered orally or in writing (Munchkin, Inc. v. Angelcare Canada Inc., 2021 FCA 169, Buffalo v. The Queen, 2001 FCA 282, at paras. 2-3 [Buffalo]). While paragraph 27(1)(c) of the Federal Courts Act, RSC 1985 c F-7 creates a right of appeal from interlocutory orders of the Federal Court, different rules apply where the ruling arises in the course of a trial. In these circumstances, appeals are available only under exceptional circumstances, as required by the interests of justice (Sawridge Band v. Canada, 2006 FCA 228, at paras. 26-28, Sopinka, at 424). This could arise where the admissibility of the evidence would cause significant prejudice to the parties or where a final disposition on the evidentiary question may have a dramatic bearing on the length of the trial. The conjunction of these two factors – prejudice and the due administration of justice will rarely occur. That is why, for example, there are statutory guarantees of rights of appeal of evidentiary rulings in some cases. Section 37.1 of the Canada Evidence Act, RSC 1985 c C-5 , for example, provides an immediate right of appeal to the appellate court in matters involving informer privilege (Basis v. the Queen, 2009 SCC 52, at para. 19).
[12] Consistent with this framework, pending appeals of interlocutory orders should be fully disposed of before trial (Sopinka, at paras. 77-78), and once commenced, the trial should not be interrupted by interlocutory appeals (Buffalo, at para. 3). Once a final judgment is issued, a party disagreeing with the judge’s treatment of the evidence in the reasons may bring their challenge by argument in their memorandum in response to an appeal (Froom v. Canada (Minister of Justice), 2004 FCA 352, at para. 11). . Borschel v. Borschel
In Borschel v. Borschel (Div Ct, 2021) the Divisional Court described the typical nature of interlocutory orders:[9] In most circumstances, an interlocutory ruling merges in the final disposition of the case. The interlocutory ruling is not binding on the trial judge. The ruling either addresses issues necessary to prepare the case for trial (such as orders for disclosure) or seeks to secure a reasonable state of affairs pending final disposition of the case (such as an interlocutory injunction or, in this case, an order for temporary support).
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