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Appeals - Interlocutory Appeals from Associate Judges (Masters). 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 The two paragraphs that were sought to be withdrawn contained factual admissions about the parties entering into two written agreements.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. . Auciello v. La
In Auciello v. La (Div Court, 2023) the Divisional Court walks through an involved appeal route analysis:Jurisdiction
[66] The appeal is from an order refusing leave to amend a pleading. It is also from the content of case management orders. It is partly in reference to a final order and partly in reference to interlocutory orders.
[67] An appeal from an interlocutory order of an associate judge lies to a judge of the Superior Court of Justice in accordance with s. 17 (a) of the Courts of Justice Act, RSO 1990 c C.43. By contrast, an appeal from a final order of an associate judge lies to the Divisional Court in accordance with s. 19 (1)(c) of the Courts of Justice Act.
[68] Pursuant to s. 21 (2)(a) of the statute, the appeal from the final order of the associate judge in this court may be heard by a single judge. Subsection 19 (2) of the statute allows for appeals that lie both to the Superior Court and to the Divisional Court to be combined and heard in the Divisional Court. I can therefore hear both appeals as a single judge sitting in Divisional Court.
[69] Otherwise, as I am also a judge of the Superior Court of Justice, I would hear both appeals while simultaneously wearing both jurisdictional hats as a single judge of both respective courts.
[70] The parties were also content that the motion and appeal be heard by me alone.[2] . Rebello v. Del Property Management
In Rebello v. Del Property Management (Ont CA, 2022) the Court of Appeal considered a challenging appeal routes scenario. The original orders under appeal were of a then-Master (now an associate judge) and were interlocutory, which sent the first appeal correctly to the Superior Court under CJA 17(a). Then the appellant further appealed to the Court of Appeal under CJA 6(2) [which allows consolidation of lower court appeals when a CA appeal still lay - which it didn't]. The Court of Appeal declined jurisdiction and quashed, holding that further appeal lay to the Divisional Court, with leave - under CJA 19(1)(b) [as it was an interlocutory order from the Superior Court]. The ratio of the case seems to be that the determination of final versus interlocutory - even through secondary appeals - is conducted at the hearing of first instance, which in this case was the then-master.
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