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Orders - Final v Interlocutory - Appeal Route

Shinder v Shinder (Ont CA, 2017)

In this case the Court of Appeal laments the difficulty in distinguishing final from interlocutory Orders, as the distinction conditions the appropriate appeal route, and calls for legislative reform on the issue:
[2] Neil Shinder now brings a motion for directions in which he seeks an order “that the motions for leave to appeal to the Divisional Court brought by the Respondent/Appellant and the Respondent, Sol Shinder, be heard by the Court of Appeal”. Randi Shinder opposes that relief and brings a cross-motion to adjourn the hearing of the appeal and for an extension of time to file her responding materials.

[3] There are two problems with the relief that the appellant seeks. First, this court does not have jurisdiction to determine a motion for leave to appeal that is brought before the Divisional Court. Section 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 permits this court to hear an appeal that lies to the Divisional Court, but only where there is an appeal in the same proceeding in this court. However, an appeal does not lie to the Divisional Court unless and until leave to appeal has been granted: Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53 (CanLII).

[4] Second, even if I had jurisdiction to transfer the matter from the Divisional Court to this court, in order to make that order, I would have to decide that the order in question is a final order and properly appealed to this court. In my view, it is not appropriate for a motions judge to make that determination. That issue, which is squarely raised by this motion, is a question of jurisdiction and that question is properly determined by the panel hearing the appeal or, alternatively, by a panel on a motion to quash, if such a motion is brought by the respondent.

[5] I have been referred to the endorsement of Epstein J.A. in Klasios v. Klasios, (May 1, 2015), Toronto, M44974 (Ont. C.A.). It is argued that that decision concluded that a motions judge could determine a jurisdiction issue. I do not agree, at least in respect of the issue that is presented here. Justice Epstein was addressing whether an extension of time to file a Notice of Appeal should be granted. Because of certain concessions that appear to have been made by counsel in that case, Epstein J.A. concluded that the order in question was clearly interlocutory and thus an extension of time to appeal ought not to be granted since the matter was not properly before this court. I note that Epstein J.A. said, at the outset of her endorsement at para. 2: “I do not have jurisdiction to decide the jurisdiction question”.

[6] In reaching the conclusion that I have, I am mindful of the costs that parties can incur when confusion arises over the proper appeal route. This is not the first time that parties have had to launch proceedings both in this court and in the Divisional Court because of the uncertainty over whether an order is final or interlocutory. This problem is inherent when the appeal route depends on a distinction between final and interlocutory orders. It is a problem that has plagued both judges and lawyers for a long time and which was aptly captured by Laskin J.A. in Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc., 2007 ONCA 497 (CanLII), 87 O.R. (3d) 443, where he said, at para. 36:
The distinction between final and interlocutory orders bedevils this court. Far too much ink has been spilled over the pages of the Ontario Reports, grappling with this distinction. Even when the parties themselves do not raise the issue, the court itself often feels compelled to do so — as it did in this case — because the court's jurisdiction to hear an appeal turns on the distinction: final orders are appealable as of right to this court; interlocutory orders are not.
[7] The problem also drew the attention of the Honourable Colter Osborne in his Civil Justice Reform Project. He recommended that the Civil Rules Committee consider the issue and, “hopefully”, make recommendations to the Attorney General for a legislative amendment to the Courts of Justice Act “that would jettison the final/interlocutory distinction” (Honourable Coulter A. Osborne, Civil Justice Reform Project: Summary of Findings & Recommendations (November 2007), at p. 105). That has not happened.

[8] Unless the problem is addressed in some such fashion, this situation will continue to occur and parties will be put to avoidable expense. None of that changes the fact, however, that it is a panel of this court that must determine the jurisdiction issue, not a motions judge. The decision of a motions judge is not binding on a panel: Courts of Justice Act, s. 7(5).

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