Simon's Megalomaniacal Legal Resources

Appeals - Interlocutory Appeals - Prematurity

. Ainsley v. Proulx

In Ainsley v. Proulx (Div Court, 2023) the Divisional Court cited law stating the administrative interlocutory orders are not appealable - here in the context of an RTA reconsideration order, sending the matter back for a new LTB hearing:

[1] The tenant seeks to appeal the interim review order of the Landlord and Tenant Board (“LTB”) dated September 8, 2023 (the “Review Decision”), under which the LTB granted the landlord’s request to review an LTB decision between these parties dated May 26, 2023.

[2] The LTB had dismissed the landlord’s application to terminate the tenancy in order to demolish the unit. However, as set out in the Review Decision, the LTB was persuaded that a serious error had been made and sent the landlord’s application back for a new LTB hearing.

[3] With respect to the tenant’s proposed appeal of the Review Decision, the Registrar was directed to send out a notice under r. 2.1 of the Rules of Civil Procedure because the Review Decision is an interlocutory order. As a result, there is no right of appeal (see this Court’s decision in Delic v. Enrietti-Zoppo, 2022 ONSC 1627).

. Oz v. Shearer

In Oz v. Shearer (Div Court, 2023) the Divisional Court holds that an interlocutory LTB order may not be appealed without leave:

[25] The Divisional Court has previously held that that the Residential Tenancies Act, 2006 does not give a right of appeal from an interlocutory order of the LTB: Delic v. Enrietti-Zoppo, 2022 ONSC 1627, at paras. 9 and 12:

The Residential Tenancies Act, 2006 does not give a right of appeal from an interlocutory order…

It cannot be the legislature’s intention … to put tribunal proceedings on hold every time an interlocutory decision is made. Section 210 does not confer a right of appeal from an interlocutory order.

[26] This decision was confirmed in Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874, where the Divisional Court reaffirmed that legislation conferring a right to appeal a decision of an administrative tribunal confers a right to appeal only a final decision, absent clear language indicating that there is a right to appeal an interlocutory decision.

[27] In the absence of a right of appeal, the Tenant must seek leave to appeal the interlocutory decision of the LTB.

[28] Alternatively, he may bring an application for judicial review, but that will also be subject to the jurisprudential restraints relating to judicial review of interlocutory decisions. It is well-established that, in most cases, reviewing courts will decline to engage in a judicial review until the administrative proceeding has been completed. This principle was summarized in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at paras. 31-32, quoted with approval by the Ontario Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at para. 69:

Absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge.

[29] See the summary of case law set out in National Car Rental Inc. et al. v Municipal Property Assessment Corp. et al., 2023 ONSC 2989, at paras. 29 - 32.

. 2541005 Ontario Ltd. v. Oro-Medonte (Township)

In 2541005 Ontario Ltd. v. Oro-Medonte (Township) (Div Court, 2023) the Divisional Court considered a motion for statutory leave to appeal, here brought under the s.24(1) of the Ontario Land Tribunal Act, 2021 against a 'review decision' of the Ontario Land Tribunal (OLT) (the 'review decision' was only to procedurally require a review (para 16), not the substantive review result).

The respondents argued that the (administrative) order challenged was interlocutory and that consequently an appeal (if leave was granted) would be premature. The single-judge of the Divisional Court nonetheless held, with extended reasoning (see paras 21-32), that the review decision and order was final, this despite the fact that the review had not yet been substantively decided:

[29] Having considered the entirety of the circumstances, it is the view of this court that the Review Decision of the Chair, in this case, is not an interlocutory decision, but rather a final decision, that set aside the Hearing Decision, on its merits, and directed a rehearing of the appeals before the Tribunal. While this court accepts a rehearing has not yet occurred, this Review Decision goes to the very heart of the matter. It overturned a lengthy Tribunal Hearing on its merits. This is analogous to a situation where the Court of Appeal quashes an acquittal and orders a new trial. Just because the new trial is pending, does not change the final nature of the Court of Appeal decision. While the new trial is pending, a party can apply for leave to appeal to the Supreme Court of Canada. This Review Decision is not related to a procedural or collateral issue. Section 24(1) is clear – an order or decision of the Tribunal may be appealed to the Divisional Court, with leave, on a question of law. The review proceedings resulted in both a Decision and an Order that went to the very foundation of this entire matter. The review proceedings did, most certainly, dispose of a substantive issue in the proceedings.

. Gong v OSC

In Gong v OSC (Div Court, 2023) the Divisional Court considered (and granted as premature) the quashing of an appeal, here of the interlocutory denial of evidence-constraining orders [ie. 'Wagg process' orders] (by the Capital Markets Tribunal) which the appellant sought within OSC-brought s.127 Securities Act ['Orders in the public interest'] proceedings. In these quotes the court considers a mandatory statutory (as opposed to discretionary 'common law') form of prematurity, in that Securities Act 10(1) only allowed appeals from 'final' orders:

Analysis

[6] Subsection 10(1) of the Securities Act permits appeals only from “final” decisions of the Tribunal, and states as follows:

10(1) The Chief Executive Officer of the Commission or a person or company directly affected by a final decision of the Tribunal may appeal to the Divisional Court within 30 days after the later of the making of the final decision or the issuing of the reasons for the final decision.

[7] In Cheng v. Ontario Securities Commission, 2018 ONSC 2502 (Div. Ct.), this court considered the predecessor provision to the current s. 10(1), which dealt with appeals from decisions of the OSC acting in its adjudicative capacity. In Cheng, the appellant appealed an OSC decision on a motion for a stay of proceedings or the exclusion of evidence on the ground of solicitor and client privilege. This Court quashed the appeal on the basis that the decision was interlocutory and not final. In coming to this conclusion, the Court determined that a “final” decision under the Act was a final determination of “the allegations made against [the defendant], including any sanction if the allegations are proven.”: Cheng, at para. 11.

[8] In Law Society of Upper Canada v. Kivisto, 2016 ONSC 1400 (Div. Ct.), this court interpreted “final” in the Law Society Act, R.S.O. 1990, c. L.8, to mean after a determination as to whether professional misconduct had occurred. This court emphasized the importance of the expeditious resolution of administrative proceedings as follows (at para. 24):

The hearing process would soon grind to a halt if mid-hearing rulings were generally subject to immediate appeal. Seized panels would be unable to fulfill their responsibilities in a timely and effective way. This has implications for the public, members of the profession, and the Society. This is especially so when it is remembered that a full hearing on the merits may make the appeal academic, and that there is an appeal from the final decision following the disciplinary hearing.

[9] In Ontario (Attorney General) v. Ontario Secondary Schools Teachers Federation, 2015 ONSC 2438 (Div. Ct.), in the context of an application for judicial review, this court declined to rule on the issue of whether the Wagg procedure applied in arbitral proceedings based on the courts’ reluctance to review interim or interlocutory decisions of administrative decision-makers.

[10] In this case, the issue that the Tribunal determined was whether the Wagg process applies to documents produced by the OSC that the OSC intends to tender as evidence at the hearing. No merits hearing has been held. The Decision is not a final decision because it does not dispose of a defence or right that, if upheld, would have finally disposed of the proceeding against the appellant. Because the decision at issue is not final, the appeal is premature and this court lacks jurisdiction to hear it.

. Aviva Insurance Canada v Harland-Bettany

In Aviva Insurance Canada v Harland-Bettany (Div Court, 2023) the Divisional Court considers the prematurity principle, here in a SABS (auto insurance) administrative appeal matter. In the event (which occured) that the court felt it lacked jurisdiction to hear the matter, the parties consented to the matter being converted to a JR - however the court exercised it's discretion not to do so, effectively for the same 'prematurity' reasons::

[8] In Penney v. The Co-Operators General Insurance Company, 2022 ONSC 3874 (Div. Ct.), the Divisional Court confirmed the principle that this Court has no jurisdiction to hear an appeal from an interlocutory decision of the LAT. Writing for the Court, Swinton J. states at para. 26 as follows:

Given the language of s.11(1) and (6) of the LAT 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 of 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 choose not to confer a right to appeal interlocutory decisions of the LAT to the Divisional Court.

[9] The Divisional Court has consistently followed the decision in Penney: Grewal v. Peel Mutual Insurance Company, 2022 ONSC 4082 (Div. Ct.), at paras. 2-4; Allo v. Licence Appeal Tribunal et al., 2022 ONSC 6368 (Div. Ct.), at paras. 8-13; Kahissay v. Intact Insurance Company, 2022 ONSC 6537 (Div. Ct.), at paras. 4-7; Tamayo v. Licence Appeal Tribunal et al., 2023 ONSC 1692 (Div. Ct.), at para. 4.

[10] In Grewal, the Court quotes Law Society of Upper Canada v. Piersanti, 2018 ONSC 640, at para. 16, to explain why an appeal lies only from a final decision of an administrative tribunal:

In regulatory proceedings, fragmentation and/or bifurcation of issues and piecemeal court proceedings are discouraged. Rather the preferred course is to allow matters to run their full course before the tribunal and then consider all the legal issues arising from the proceeding, following its conclusion. In conduct proceedings that involves a finding of professional misconduct or conduct unbecoming.

[11] The Court found the same policy considerations applied to LAT decisions: “It is preferable to avoid the fragmentation and delay in the administrative process that would result if appeals were available before there has been a final determination of the claim”: Grewal, at para. 7.

[12] As the Court states in Delic v. Enrietti-Zoppo, 2022 ONSC 1627 (Div. Ct.), at para. 7:

It is not the form of the order, but its effect that governs. An interlocutory decision can contain final orders. An order is final if it disposes finally of a claim. An order is not final just because it is one of substance. Where the effect of an order is to continue the inquiry, it is not final.

Examining its effect, the LAT’s preliminary issue decision is interlocutory in nature. It does not finally dispose of the substantive issues in the insured’s underlying application before the LAT.

[13] The decision in Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (Div. Ct.), was decided before the pronouncement in Penney. In any event, Porter is distinguishable. Unlike the case before us, the only issue to be determined by the LAT in Porter was whether the incident was an “accident” within the meaning of the Schedule. Here, however, the insured’s underlying disputes have not been determined.

[14] In accordance with the reasoning in Penney and the objective of preventing fragmentation of and delay in administrative proceedings, we conclude that at this juncture, the Court lacks jurisdiction to hear this appeal from the LAT’s preliminary issue decision. To hold otherwise would mean that each time a preliminary issue is determined by the LAT an appeal could be brought to this Court. This would defeat the underlying objective of preventing fragmentation and delay, underscored in Piersanti, Penny and Grewal.

[15] This does not mean that Aviva has no right to appeal the preliminary issue decision. The Court will have jurisdiction to hear this issue following the final determination of the underlying matters currently before the LAT. At that time, all appeal rights can be exercised together, thereby avoiding fragmentation, delay and the risk of duplicate or contradictory evidentiary findings. This is the most just and efficient way of proceeding.

Conclusion

[16] Regarding the preliminary issue raised we conclude that this Court does not have jurisdiction to hear this appeal.

[17] The day before the hearing of the proposed appeal, the parties submitted a joint responding factum on jurisdiction. They requested that if there was no jurisdiction that the Court convert the proposed appeal into an application for judicial review.

[17] As set out in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, at paras. 42-43, it is only in rare cases that the Court will exercise the discretionary remedy of judicial review given the legislative scheme for the resolution of disputes over SABs. The legislative intent is to limit access to the courts for these disputes. Further, in this case, Aviva would need to overcome the well-established principle of prematurity that courts should not interfere with ongoing administrative processes absent exceptional circumstances. The Court therefore declines the parties’ request to convert the proposed appeal into an application for judicial review.