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Orders - Final versus Interlocutory

Contempt - Effect of Bankruptcy

Walchuk Estate v. Houghton (Ont CA, 2015)

In this case the Court of Appeal upheld a Superior Court judge's finding that bankruptcy did not stay contempt proceedings for non-compliance with a court order (here an order for disclosure during examinations in aid of execution), and additionally made the following comments on the distinction between interlocutory and final orders (here for appeal purposes):
[12] The question whether orders under appeal are final or interlocutory has generated a lot of case law in this court. Some of the cases are not easily reconcilable. The starting point is to look at the judgment or order itself, and not the reasons for judgment. See Ashak v. Ontario, 2013 ONCA 375 (CanLII); and Trainor v. Canada (Customs and Revenue Agency), 2011 ONCA 794 (CanLII).

[13] Here, if one were to look at the judgment of Harper J. alone, his order appears to be interlocutory. It adjourns, rather than finally disposes of, the contempt motion. That was the view taken by our colleague, Tulloch J.A.

[14] But, in some cases, to determine whether an order is truly final or interlocutory, one needs to look at the reasons. This is one of those cases. If the reasons show that a defendant has been deprived of a substantive right or defence that could resolve all or part of the proceedings, then the order is final. See Ball v. Donais, 1993 CanLII 8613 (ON CA), [1993] O.J. No. 972; Abbot v. Collins, 2002 CanLII 41457 (ON CA), [2002] O.J. No. 4058; Ashak, at para. 17.

[15] In this case, the only question before Harper J. – and it was a question of law – was whether Houghton could still be liable for contempt though he had declared bankruptcy. Harper J. decided that question. Had he ruled that s. 69 of the BIA stayed the contempt proceedings, that ruling would have put an end to those proceedings. Because he ruled otherwise, Houghton has potentially been deprived of a right or defence that would have ended the proceedings against him. For this reason, Harper J.’s judgment is a final order. Of course, whether Harper J. was right or wrong must be decided by the panel hearing the appeal.


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