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Orders - Final v Interlocutory

Orders - Taking Out of Formal Orders

Cheung v. Samra (Ont CA, 2018)

Here the court tries (once again) to clarify the distinction between interlocutory and final orders, and makes a point regarding the role of formal orders in appeals:
[5] There have been many efforts made to enunciate the difference between final and interlocutory orders. One of the first such efforts is found in Hendrickson v. KalIio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.). In that decision, Middleton J.A. said, at p. 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 applications, but it is interlocutory if the merits of the case remain to be determined.
[6] Subsequent cases have expanded on that definition. For example, the decision in Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.) held that where a substantive right of a party was determined, even if other aspects of the proceeding remained to be determined, the resulting order was a final order.


[11] Before concluding, we would add one further observation. The formal order in this case has not been taken out. The court raised this concern with counsel prior to the hearing. Counsel acknowledged their oversight in this regard but urged us to hear the motion in any event. We chose to do so in order to avoid the delay that would have been occasioned through an adjournment of this matter, especially if we concluded that the matter had to be transferred to the Divisional Court. However, we would reinforce that this is not the proper procedure to be followed in such matters. The formal order must be taken out since any appeal lies from the order, not from the reasons: Grand River Enterprises v. Burnham (2005), 2005 CanLII 6368 (ON CA), 197 O.A.C. 168 (C.A.) at para. 10. Further, in some instances, the precise wording of the order may have an impact on the proper analysis.

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