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Appeals - Final versus Interlocutory - Jurisdiction Where Appeal Combines Both

Azzeh v. Legendre (Ont CA, 2017)

Here the Court of Appeal clarifies where appellate jurisdiction lies of for an appeal where both final and interlocutory Orders are impugned, and when the interlocutory Order appeals may be combined to be heard in the Court of Appeal, rather than separately before the Divisional Court:
[21] Before turning to the issues on appeal, a few comments respecting jurisdiction must be made.

[22] Paragraph 1 of the order appealed from grants leave to amend the statement of claim to add the City and others as defendants. Granting leave to add party defendants is interlocutory: Hunter v. Richardson, 2013 ONCA 731 (CanLII), [2013] O.J. No. 5896.

[23] Paragraph 2 of the order grants leave to increase the prayer for relief and make other amendments consistent with the addition of the defendants. Paragraph 2 is also an interlocutory order: Merling v. Southam Inc., et al. (2000), 2000 CanLII 5621 (ON CA), 128 O.A.C. 261.

[24] The declaration that the action is not statute-barred in paragraph 3 of the order deprives the defendants of substantive defences and is therefore final: Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.).

[25] In general, where an order has both final and interlocutory aspects, the appeal lies to this court only from the final portion of the order: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.). Leave to appeal from the interlocutory portion must be obtained from the Divisional Court, at which point the appellant may move to have the appeals heard together in this court.

[26] However, in Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.), the court heard the appeal from both the final and interlocutory aspects of an order where “because the two issues are so interrelated … once the first issue was before this court, leave would inevitably have been granted on the second.” That is the case here. Whether the City was properly added as a defendant depends on whether the action against it is statute-barred. Therefore, both aspects of the appeal were heard by this court.

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