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Orders - Final v Interlocutory

Sennek v. Carleton Condominium Corporation No. 116 (Ont CA, 2017)

In this case the Court of Appeal (once again) articulates the distinction between 'final' and 'interlocutory' orders, as that distinction conditions the appeal route for such orders:
[11] The distinction between a final and interlocutory order was expressed in the this court’s decision in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at pp. 678:
The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.
[12] The court approved of the following test for determining whether an order is final or interlocutory, at p. 680:
It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made finally dispose of the rights of the parties? It if does, then I think it ought to be treated as a final order, but if it does not it is then, in my opinion, an interlocutory order.
[13] The characterization of an order as final or interlocutory is determined by the order’s legal nature, rather than the particular circumstances of the plaintiff or defendant who is affected by the order. As Morden A.C.J.O. explained in Laurentian Plaza Corp. v. Martin (1992), 1992 CanLII 7561 (ON CA), 7 O.R. (3d) 111 (C.A.), at p. 116:
The question of categorization which determines access to appellate review must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case. As I have indicated, jurisdictional rules should be as clear as possible and their application should not be beset with factual disputes which themselves may be protracted and difficult to resolve.
[14] In circumstances analogous to those of the present case, this court has characterized an order requiring the plaintiff to appoint a litigation guardian, and requiring the litigation guardian to appoint counsel to represent the plaintiff, as interlocutory: see Willmot v. Benton, 2011 ONCA 104 (CanLII), 11 C.P.C. (7th) 219. The order provided that if those steps were not taken within thirty days, the defendants could move without further notice to strike out the plaintiff’s pleadings and seek dismissal of the action. The court wrote at para. 3 that the “primary aspect of the order requiring the plaintiff to appoint a litigation guardian and counsel is procedural in nature and does not finally resolve an issue that goes to the merit or substance of this litigation.”

[15] A sanction for non-compliance of an interlocutory order does not alter the legal nature of the order. As Sharpe J.A. observed in Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642 (CanLII), 97 O.R. (3d) 161, at para. 26:
I recognize that failure to satisfy an order for security for costs may lead to a dismissal of the claim, but the sanction for non-compliance with an order cannot alter the nature of the order itself. Many procedural or interlocutory orders – for particulars, for production of documents, for the payment of costs ordered in interlocutory proceedings – may carry the ultimate sanction of dismissal of the non-complying party’s claim. But if the claim is dismissed, the dismissal flows from the party’s failure to comply with the interlocutory or procedural order, not from the order itself, and does not alter the interlocutory or procedural nature of the order that led to dismissal [Citation omitted.]

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