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Appeals - Interlocutory Orders. Fisher v. Haines [order to remit back down is interlocutory]
In Fisher v. Haines (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA s.210 appeal, this from a successful landlord's LTB reconsideration which remitted the application to a new LTB termination hearing.Note: In this case the court expressly overrides the doctrine from Leduc v. Glen Echo Park Inc. (Div Ct, 2011) that: "this court would have jurisdiction over a timely appeal from a decision to direct a fresh hearing, Leduc was decided per incuriam, is wrongly decided, and should not be followed on this point". Leduc held then on the basis that such an order was 'final', but it has been held here to be interlocutory. Appeals of interlocutory administrative orders are normally barred under the doctrine of prematurity. The issue in this case was whether a successful administrative reconsideration order, which remitted the case back down for re-hearing, was interlocutory or final (again, it was held now to be interlocutory):[3] The issue of this court’s jurisdiction to hear an appeal from the impugned review orders was raised during case management, and that issue was directed to be heard during the appeal. At the outset of oral argument, we directed the parties to address this jurisdictional issue first, before we heard argument on the main appeal. Following submissions from the Appellant we dismissed the appeals for lack of jurisdiction, with these reasons to follow.
Summary and Disposition
[4] The impugned orders are, on their face, interlocutory. This court has no jurisdiction to hear appeals from interlocutory orders of the LTB. This court would have jurisdiction to hear applications for judicial review from the impugned review decisions, but these were not brought on the sensible basis they would be dismissed for prematurity.
Jurisdiction
[5] Before the case management judge, the Appellant relied upon Leduc v. Glen Echo Park Inc., 2011 ONSC 2573, para. 11, for the proposition that a review decision setting aside a final decision from an LTB hearing, and directing a fresh hearing, is a final order that may be appealed to this court. This argument was buttressed by an initial statement in the LTB review orders that the review orders were “final” (statements corrected in amended review decisions). The case management judge directed a hearing before a panel of three judges of this court on the basis that the jurisdictional issue may be arguable.
[6] The jurisdictional issue has already been decided by a panel of this court authoritatively. It appears that this authority was not brought to the attention of the case management judge.
[7] After a thorough review of the law, Swinton J., writing for a panel of this court, found as follows in Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874, paras. 26-27:Given the language of s. 11(1) and (6) of the [License Appeal Tribunal Act], read in the context of the entire statute and the objective of preventing fragmentation of and delay in administrative proceedings, I conclude that this Court has no jurisdiction to hear an appeal from an interlocutory decision of the LAT. In my view, this conclusion is consistent with the instruction from the Supreme Court of Canada in Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65 that the courts should respect the Legislature’s decisions with respect to institutional design (at paras. 24, 36). Here, the Legislature chose not to confer a right to appeal interlocutory decisions of the LAT to the Divisional Court.
I note, before closing, that a party may have the option of seeking judicial review of an interlocutory decision in an appropriate case, as the judges in Blew and Sazant, above, discussed. The applicant will likely have to meet an argument of prematurity and show exceptional circumstances if it wishes to be heard. However, in this case, there was no request to turn this appeal into an application for judicial review. [8] Penney did not make new law. It restated long-established law. And the principles stated in Penney apply to appeals from the LTB (Delic v. Enrietti-Zoppo, 2022 ONSC 1627, para. 11 [authorities footnoted in original]):Jurisprudence in this court with respect to similar provisions for statutory appeals from other tribunals has consistently held that in the absence of an explicit right of appeal from an interlocutory decision, only a final order of a tribunal can be appealed. Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 CanLII 5633 (ON SCDC), 66 OR (2d) 18 (Div. Ct.); Sazant v. R.M. and C.I.C.B., 2010 ONSC 4273(Div. Ct.), Stockfish v. Ontario (Motor Vehicle Dealers Act, Registrar), [2008] O.J. No. 2052 (Div. Ct.), Canadian Union of Public Employees (CUPE) v. Ontario Hospital Assn., 1991 CarswellOnt 914 (Div. Ct.), McCann v. Ontario (Police Services Act Board of Inquiry), 1994 CarswellOnt 894 (Div. Ct.), Butterworth v. College of Veterinarians of Ontario, [2001] O.J. No. 5265 (Div. Ct.), Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819(Div. Ct.), Ibrahim v. Ontario College of Pharmacists, 2010 ONSC 5293, rev’d on other grounds 2011 ONSC 99at para. 4 (Div. Ct.), Blew v. Ontario College of Teachers, 2016 ONSC 8053at paras. 6-11 (Div. Ct.), Free v. County of Norfolk and Dietrich Engineering Limited, 2017 ONSC 909at para. 3 (Div. Ct.), Coughlin v. Director, Ontario Disability Support Program, 2021 ONSC 1236(Div. Ct.). [9] The Appellant argues that the impugned order is a final order because it finally sets aside a final order of the LTB. There is no merit to this argument. The effect of the impugned order is to leave the substantive issues between the parties unresolved, to be determined in a fresh hearing. As held in Delic, at para. 7, an order is final if it finally disposes of a claim. See also 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, para. 7. Where the effect of an order is to continue the inquiry in respect to a claim, the order is interlocutory. As stated by the Court of Appeal in Heegsma v. Hamilton (City), 2024 ONCA 865, para. 12:At its core, an interlocutory order is one that 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. 1; Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16. Although an order will undoubtedly answer the question raised by the relevant motion, it remains interlocutory in nature if the substantive matters lying at the heart of the subject matter of the litigation remain undecided: Drywall Acoustic, at para. 16, citing Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678 and Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). [10] Two recent decisions of this court have found that a review decision of the LTB setting aside a hearing determination, and remitting the case for a fresh hearing, is interlocutory, and is therefore not subject to appeal to this court. These decisions were made pursuant to r. 2.1 and resulted in dismissal of the appeals as being “the clearest of cases” and therefore frivolous, vexatious and abuses of process: Elsimali v. Pinedale Properties, 2024 ONSC 5730 (Div. Ct.); Ainsley v. Proulx, 2023 ONSC 6308 (Div. Ct.).
[11] Leduc v. Glen Echo Park Inc., 2011 ONSC 2573, was a decision of a single motions judge of the Divisional Court. In it, the parties were contesting whether the Residential Tenancies Act applied to the relationship between them. At the first LTB hearing, the LTB found that the Act did apply. The “landlord” sought review of that decision. The LTB granted the review and directed that a fresh hearing be held. The LTB conducted that fresh hearing and found that the Act did not apply to the relationship between the parties. The “tenants” then commenced an appeal of both the second substantive decision (that the Act did not apply) and the prior review decision setting aside the first determination. The motions judge dismissed the appeal from the review decision directing a new hearing on the basis that the appeal was out of time and an extension should not be granted. It appears that no one raised with the motions judge the issue of jurisdiction over an appeal from the review decision to hold a fresh hearing. The motions judge did permit the appeal to proceed on the merits in respect to the LTB’s final determination that the Act did not apply to the relationship between the parties.
[12] The court in Leduc did not consider or make express findings about the jurisdictional issue. It dismissed the appeal from the LTB’s interlocutory ruling on other grounds (the appeal was out of time and an extension should not be granted). To the extent that Leduc implicitly finds that this court would have jurisdiction over a timely appeal from a decision to direct a fresh hearing, Leduc was decided per incuriam, is wrongly decided, and should not be followed on this point.
Disposition
[13] Penney, Delic, Elsimali and Ainsley decisively eliminate any lingering uncertainty there could be on this issue: this court has no jurisdiction to entertain appeals from interlocutory decisions of the LTB. As noted in Penney, applications for judicial review are available from interlocutory decisions, but such applications will be dismissed unless the applicant shows “exceptional circumstances”. As counsel for the Appellant acknowledged during oral argument, applications for judicial review of the impugned review decisions would almost certainly have been dismissed for prematurity had they been brought in these cases. . Jendrika v. Intact Insurance Company
In Jendrika v. Intact Insurance Company (Ont Divisional Ct, 2025) the Divisional Court dismissed a LAT SABS appeal, here from a reconsideration denial, that from an earlier denial of a time extension to file a reconsideration, that from an IRB and benefits denial.
Here the court considered whether it had jurisdiction to hear the appeal, on the argument that the reconsiderations and the time extension would have been, if granted, interlocutory orders:[16] The Respondent argues that this Court does not have the jurisdiction to consider an appeal from an interlocutory order such as a reconsideration decision. ....
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Issue #1- Jurisdiction
[19] .... this Court does not have the jurisdiction to consider an appeal from an interlocutory decision of the LAT. In this case, I am of the view that both the time extension and reconsideration decisions are interlocutory decisions and not final ones. These two decisions do not resolve the merits of the case on a final basis. Therefore, they are not the proper basis for an appeal to this Court.
[20] The starting point for the analysis of this issue is section 11(6) of the Licence Appeal Tribunal Act 1999, S.O. 1999, c. 12, Sch.G, (“LATA”) which states:(6) An appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only. 2014, c. 9, Sched. 5, s. 5 (3). [21] This Court has repeatedly found that this section does not provide for appeals of interlocutory orders. Penney v. Co-operators General Insurance Company 2022 ONSC 3874 at paras. 8-17, Grewal v. Peel Mutual Insurance Co., 2022 ONSC 4082 and Rao v. Wawanesa Mutual Insurance Company 2024 ONSC 39.
[22] In Rao, the Court stated (at paras. 24-25):[24] There is also the decision of this Court in Grewal v. Peel Mutual Insurance Company, 2022 ONSC 4082. In Grewal, an appeal was quashed because the LAT decision at issue was not final. The LAT decision denied a request to add a punitive damages claim to a SABS application at an early stage of the LAT process. A reconsideration of that LAT decision had already been denied. Although the facts in Grewal are different, it supports the conclusion that LAT decisions denying a reconsideration do not automatically give rise to a right of appeal to this Court. The LAT Decision denying reconsideration of the denial of an extension of time was interlocutory and did not give rise to a right of appeal to this Court. I do not have to decide whether a reconsideration decision can ever be final – that case is not before me.
[25] I conclude that only the Merits Decision gives rise to a right of appeal in this case. [23] Rao leaves open the possibility that, in some circumstances, a reconsideration decision might be a final decision. This is not that case. In this case, the reconsideration decision is not of the merits of the case. It is a reconsideration of the decision denying an extension of time to file a reconsideration decision. That is clearly an interlocutory issue. Similarly, the lime limits decision is interlocutory.
[24] Since neither the extension decision nor the reconsideration of that decision are final decisions, I conclude that this Court does not have jurisdiction to consider them. I would dismiss the Appellant’s appeal of both of those decisions. The remaining two issues shall be considered in reference to the decision on the merits only. . 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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