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Orders - Final or Interlocutory

Appeals - Final or Interlocutory Orders

Fram Elgin Mills 90 Inc. v Romandale Farms Limited (Ont CA, 2016)

In this Court of Appeal case the court discusses the vexed question of when an Order below is interlocutory or final, as that distinction determines it's appeal route:
[28] An order granting leave to amend a pleading is an interlocutory order: see Dynasty Furniture Manufacturing Ltd. v. Toronto-Dominion Bank, 2015 ONCA 137 (CanLII), at paras. 5-7; Natario v. Rodriguez, 2015 ONCA 227 (CanLII), 71 C.P.C. (7th) 285, at para. 7. An order adding a party defendant is also an interlocutory order: see Hunter v. Richardson, 2013 ONCA 731 (CanLII), at para. 2. The rationale in both instances is that the litigation continues and the order made does not affect a party’s substantive rights.

[29] By contrast, an order under r. 21.01(1)(a) to determine a question of law before trial where the determination disposes of all or part of a claim or defence is final because it precludes the party from raising the issue going forward: see Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), at para. 3; Abbott v. Collins (2002), 2002 CanLII 41457 (ON CA), 62 O.R. (3d) 99 (C.A.), at paras. 5-7. Where an order deprives a party of a substantive right that could be determinative of the action, that order is final: Stoiantsis v. Spirou, 2008 ONCA 553 (CanLII), 91 O.R. (3d) 184, at paras. 19-22.

[30] The nature of the underlying motion is an important consideration in deciding whether the order is final or interlocutory. For instance, regardless of the reasons given by the judge for dismissing a motion under r. 21.01(1)(b) to strike a pleading on the ground it discloses no reasonable cause of action or defence, “it is reasonable to think that … the judge does not have the power to make a final order under that provision”: S. (R.) v. H. (R.) (2000), 2000 CanLII 17038 (ON CA), 52 O.R. (3d) 152 (C.A.), at para. 18, per Morden J.A.

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