|
Administrative - Appeals - Premature if Interlocutory (3). Bradu et al. v. Romanian Cultural Association (Hamilton) Inc.
In Bradu et al. v. Romanian Cultural Association (Hamilton) Inc. (Ont Div Ct, 2026) the Ontario Divisional Court considered an RTA s.210 appeal, here brought against LTB orders "respecting the Board’s decision that the Act does not apply to their respective Campsites" [this under RTA s.5(a) 'Exemptions from Act - seasonal accomodation'].
The court considered the distinction between interlocutory and final orders, here in this administrative interlocutory context:[33] The test to determine whether an order is final or interlocutory was settled some time ago by the Court of Appeal in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, where the Court provides this guidance: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. [34] This court in Leginj, at para. 21, observes that the Court of Appeal has confirmed this test numerous times and cites as an example the Court’s decision in Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 144, where at paras. 33 and 40, the Court states:An interlocutory order is an order which “does not determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right”: Paulpillai Estate, at para. 16, citing Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16, and Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, at p. 678. See also Ball. V. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). As Middleton J.A. observed in Hendrickson, at p. 678, an order “may be final in the sense that it determines the very question raised by the [motion or application before the court] but it is interlocutory if the merits of the case remain to be determined”.
....
In any event, even if the practical effect of the order is, as HDI indicates, that the litigation will come to an end, this does not make the order a final order… [35] Finally, Ramsay J. succinctly states in Delic, at para. 7, “[a]n order is final if it disposes finally of a claim. An order is not final just because it is one of substance”.
[36] In Leginj, the order at issue was the Board’s denial of the tenant’s request for an extension of time to file a review request. Although this court did not finally determine the matter, Charney J., in his case conference endorsement, questioned the tenant’s position that the order was a final order. The court reasoned that the order:is not a decision on the merits of the case of “the real matter in dispute between the parties”. It is a decision of the LTB not to grant an extension of time to file a request for review. Arguably, a decision on whether to grant an extension of time is akin to a decision on whether to grant leave to appeal, which is not subject to an appeal except in very limited circumstances: Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122, at para. 8”. [37] In Rao v. Wawanesa Mutual Insurance Company, 2024 ONSC 39 (“Rao”), Ms. Rao sought to appeal two orders of the Licence Appeal Tribunal (the “Tribunal”): the Tribunal’s decision denying an extension of time to appeal the ruling of the Tribunal that she was not catastrophically impaired and the Tribunal’s decision refusing a reconsideration of the denial of an extension of time.
[38] This court found that the Tribunal’s decision denying an extension of time is not a final order because it did not decide the merits; rather the Tribunal declined to grant an extension of time to pursue an internal route to have the merits reconsidered by the Tribunal (at para. 20). The court also held in Rao that the Tribunal’s decision denying reconsideration of the denial of an extension of time is not a final order giving rise to a right of appeal. Matheson J. observes at para. 22, that:[i]t cannot be that simply requesting a reconsideration would give rise to a right of appeal where the underlying decision has no such right. If that were so, there could be an appeal to this Court from every interlocutory decision, indirectly, by seeking a reconsideration. On the contrary, the statute grants a right of appeal from final decision only. [39] I find that there are no appeal provisions in the Licence Appeal Tribunal Act 1990, S.O. 1990, c. 12 Sched G., that distinguishes it from those provisions in the Act that would cause me to reach any conclusion other than that which was decided in Rao with respect to the Extension Order and Review Order. The former does not decide the merits of the application notwithstanding it may be a decision of some substance, and the latter cannot be said to give rise to an appeal right when its foundational order has no right of appeal.
[40] I therefore find that both the Extension Order and the Review Order are interlocutory orders for which there is no right of appeal to this court for want of jurisdiction. . Bradu et al. v. Romanian Cultural Association (Hamilton) Inc.
In Bradu et al. v. Romanian Cultural Association (Hamilton) Inc. (Ont Div Ct, 2026) the Ontario Divisional Court considered an RTA s.210 appeal, here brought against LTB orders "respecting the Board’s decision that the Act does not apply to their respective Campsites" [this under RTA s.5(a) 'Exemptions from Act - seasonal accomodation'].
Here the court considers the doctrine that an administrative interlocutory order may not be appealed, rather the litigant must wait until a final tribunal order is obtained:[23] This court has consistently held that the Act does not give a right of appeal from an interlocutory order. I refer to the decisions of this court in Delic v. Enrietti-Zoppo, 2022 ONCA 1627 (“Delic”); Shearer v. Oz, 2024 ONSC 1890, and Leginj.
[24] I see no reason to deviate from the past direction of this court, and indeed, I adopt it.
[25] In Penney v. The Co-Operators General Insurance Company, 2022 ONSC 3874 (“Penney”), Swinton J., writing for a panel of this court, observes that there are many cases decided in Ontario which have reached the same conclusion with respect to the appeal provisions in other statutes governing a wide range of administrative tribunals, including the Criminal Injuries Compensation Board, the Social Benefits Tribunal, the Licence Appeal Tribunal and professional disciplinary bodies (at para. 13).
[26] Ramsay J., also writing for a panel of this court, in Delic, at para. 11, states:Jurisprudence in this court with respect to similar provisions for statutory appeals from other tribunals has consistently held that in the absence of an explicit right of appeal from an interlocutory decision, only a final order of a tribunal can be appealed [1]. [27] In a footnote, this court in Delic summarized the decided cases as follows:[1] Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 CanLII 5633 (ON SCDC), 66 OR (2d) 18 (Div. Ct.); Sazant v. R.M. and C.I.C.B., 2010 ONSC 4273 (Div. Ct.), Stockfish v. Ontario (Motor Vehicle Dealers Act, Registrar), [2008] O.J. No. 2052 (Div. Ct.), Canadian Union of Public Employees (CUPE) v. Ontario Hospital Assn., 1991 CarswellOnt 914 (Div. Ct.), McCann v. Ontario (Police Services Act Board of Inquiry), 1994 CarswellOnt 894 (Div. Ct.), Butterworth v. College of Veterinarians of Ontario, [2001] O.J. No. 5265 (Div. Ct.), Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 (Div. Ct.), Ibrahim v. Ontario College of Pharmacists, 2010 ONSC 5293, rev’d on other grounds 2011 ONSC 99 at para. 4 (Div. Ct.), Blew v. Ontario College of Teachers, 2016 ONSC 8053 at paras. 6-11 (Div. Ct.), Free v. County of Norfolk and Dietrich Engineering Limited, 2017 ONSC 909 at para. 3 (Div. Ct.), Coughlin v. Director, Ontario Disability Support Program, 2021 ONSC 1236 (Div. Ct.). [28] The bar to the court entertaining an appeal from interlocutory orders of administrative tribunals generally, and the Board, in particular, has a rational basis in the administrative law context “where the objective is to provide efficient and timely adjudication through administrative tribunals” (see: Penney, at para. 25).
[29] Ramsay J. comments in Delic that objective is evidenced in s.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”), and with respect to the Board specifically, in s.183 of the Act. That section provides:183 The Board shall adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter. [30] Ramsay J. also concludes, and I concur, that “[i]t cannot be the legislature’s intention at the same time to put tribunal proceedings on hold every time an interlocutory decision is made” (at para. 12). . Agnew v. Bourgette [no appeal of interloc orders]
In Agnew v. Bourgette (Ont Div Ct, 2026) the Ontario Divisional Court granted a motion to extend time to commence an RTA s.210 appeal, but dismissed the appeal.
Here the court, briefly and without citing authority, states the doctrine that an interlocutory administrative order cannot be appealed:[8] Although not raised in response to this appeal, there is no right of appeal from the Motion Decision. The Motion Decision was the denial of an extension of time, which is not a final decision. .... . Millar v. The Cooperators General Insurance Company
In Millar v. The Cooperators General Insurance Company (Div Ct, 2021) the Divisional Court held that an appeal of an interlocutory preliminary issue decided by the LAT, was premature:[11] Cooperators submits that the most just and efficient way of proceeding would be to hear the appeal now rather than awaiting a hearing on the merits. It argues that a hearing on the merits will be unnecessary if this appeal decides that Mr. Millar is a dependant and therefore an insured person.
[12] Cooperators relies on the decision of the Divisional Court in Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (CanLII). In Porter, the court heard an appeal from a preliminary decision on the question of whether there had been an “accident.” Cooperators argues that this is authority for the proposition that an appeal of a preliminary question such as whether there has been an “accident” is not premature.
[13] We disagree. In Porter the panel decided to hear the appeal from the preliminary question in the context of a case in which there were no other matters to be determined on the application for benefits. This is unlike the case at bar. There is a well-developed line of jurisprudence from this court that it will generally decline to hear appeals from preliminary decisions where other issues are yet to be decided by the tribunal: See Traders General Insurance Company v. Rumball, 2019 ONSC 1412 (CanLII); Allstate Insurance Company v. Billard, 2019 ONSC 6265 (CanLII); Taylor v. Aviva Canada Inc., 2018 ONSC 4472.
[14] The repeatedly stated policy reasons behind avoiding premature appeals in administrative proceedings include avoiding inefficiency, expense and allowing administrative processes to proceed to a conclusion on all issues. An appeal may not be necessary after those steps have been taken. Any appeal will have the benefit of a full procedural and evidentiary record. There will be fewer delays in arriving at a result, caused by pausing the proceedings for appeals or judicial reviews. Even where the parties may agree an appeal should be heard, as Favreau, J. noted in Rumball, “the Court is entitled to guard against the inefficiency, extra expense and waste of judicial resources resulting from fragmented administrative proceedings.” . Bell Technical Solutions v. Unifor, Local 1996-O
In Bell Technical Solutions v. Unifor, Local 1996-O (Div Ct, 2021) the Divisional Court considers, and dismisses, a novel argument on an exception to the prematurity principle that prohibits appeal or judicial review of interlocutory tribunal decisions:[8] In the administrative law context, the courts, and this court in particular, have consistently applied the doctrine of prematurity, both in appeals and applications for judicial review, and refused to review preliminary decisions of administrative tribunals in order to prevent fragmentation of the administrative process and delay absent exceptional circumstances.
[9] The applicant argues that this application is exceptional because it deals with what it calls “a true issue of jurisdiction involving the jurisdictional line between two independent tribunals that is not dependent upon the evidence.” While judicial support for this approach exists, it has been overtaken by more recent jurisprudence. In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 67, the Court of Appeal adopted the view of Stratas J.A. in C.B. Powell Ltd. V. Canada (Border Services Agency), 2010 FCA 61, that the use of the label “jurisdiction” to justify judicial interference with ongoing administrative decision-making processes is no longer appropriate. The Court further stated that even a true question of jurisdiction is not, of itself, an exceptional circumstance justifying judicial review before judicial proceedings are completed.
[10] Counsel for the applicant argued that the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 overtakes Volochay by implication. At para. 63 of Vavilov, the Court stated that the rule of law requires that the correctness standard be applied in order to resolve questions regarding the jurisdictional boundaries between two or more administrative bodies. This, she says, creates an exception to the usual practice of dismissing premature applications for judicial review. Even assuming that correctness is the standard of review on this issue in this case, a question we do not reach, I do not agree. First, this statement in Vavilov was nothing new. The same was said in Dunsmuir v. New Brunswick, 2008 SCC 9, and several earlier decisions of the Supreme Court of Canada. And second, the argument conflates the need for a consistent understanding of the boundary between administrative decision makers provided by review on the standard of correctness, and the asserted need to fragment administrative proceedings in order to have an early determination of that question. There is no such need.
[11] Further, there is no reason to apply the doctrine of prematurity differently on review of administrative decisions on a correctness standard, typically in statutory appeals from administrative decisions, than on review on a reasonableness standard. The jurisprudence of this court is clear on the issue. For a recent example, see Coughlin v. Ontario Disability Program (Director), 2021 ONSC 1236 at para. 8.
[12] We see no other exceptional circumstance in this case that would justify proceeding with a judicial review application in this matter prior to the completion of the arbitration. On the contrary, the fact that the preliminary award dealt only with one of the three preliminary issues raised by the applicant, and even then did not finally decide all aspects of that issue, highlights the risk of fragmented proceedings if we were to decide the issue raised on this application now, and strongly militates against our doing so. . Cura v. Aviva Insurance Canada
In Cura v. Aviva Insurance Canada (Div Ct, 2021) the Divisional Court engaged in an extended praise of prematurity as a doctrine, both in the appeal and the judicial review (which this one was) context:[1] Litigants, whether they are before an arbitrator or a trial judge must, absent exceptional circumstances, proceed with their litigation to its ultimate conclusion before anyone aggrieved with an interim ruling or order initiates an appeal or an application for judicial review. There is good reason for this proposition. Numerous decisions are made by arbitrators and trial judges during the course of a hearing. Many of these decisions the parties may not agree with. Litigation in general would come to a grinding halt if an aggrieved litigant sought redress in a higher court every time he or she lost an argument during a trial or arbitration. This application for judicial review should serve as a reminder to heed this basic direction.
...
[30] It is a fundamental principle of our legal system as it relates to both litigation before the LAT and similar tribunals, as well as trials in our court system, that decisions made during the course of a proceeding are not subject to judicial review or an appeal until such time as the process itself is complete. This principle is well understood and reflected in the decision of the Court of Appeal in Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 69, where the Court of Appeal adopted the rationale for this principle set forth by Stratas J.A. in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, as follows:Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until available, effective remedies are exhausted.
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a review in court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. . Coughlin v. Director, Ontario Disability Support Program
In Coughlin v. Director, Ontario Disability Support Program (Div Ct, 2021) the Divisional Court considered the doctrine of prematurity in the context of an appeal from an interlocutory order from the Social Benefits Tribunal:[7] In my view, Hendrickson does not assist in determining the scope of the right to appeal in s. 31(1) of the Act. It is a case that arose in the civil context to determine statutory lines of appeal for orders that are either final or interlocutory (see The Law Society of Upper Canada v. Piersanti, 2018 ONSC 640 (Div. Ct.) at paras. 14, 16).
[8] In the administrative law context, the courts have applied the doctrine of prematurity, both in appeals and applications for judicial review, and refused to review preliminary decisions of administrative tribunals in order to prevent fragmentation of the administrative process and delay. Three of many examples where this has occurred in Ontario, in the context of a statutory appeal, are Roosma v. Ford Motor Co. of Canada Ltd., 1998 CanLII 5633 (ON SCDC) at para. 30, Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (Div. Ct.) at para. 19, and Traders General Insurance Company v. Rumball, 2019 ONSC 1412 (Div. Ct.) at para. 20. It is instructive to quote the words of Marrocco A.C.J.S.C. in Taylor at para. 19:The fact that both an appeal and a request for reconsideration can proceed at the same time is, however, subject to the jurisprudence of this court. This court is reluctant to hear appeals from interim or interlocutory orders of administrative decision makers for the same reason that it is reluctant to hear judicial review proceedings before the administrative decision-making process has ended. Such appeals fragment the administrative proceeding and increase costs. Accordingly, courts have interpreted language that grants an appeal from a “decision or order” of a board or tribunal as limited to an appeal of a final order (see, for example, Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 CanLII 5633 (ON SCDC), 66 O.R. (2d) 18 (Div. Ct.), at para. 26; and Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819, 285 O.A.C. 218 (Div. Ct.), at paras. 72-73). If a proceeding is “fatally flawed”, an interim or interlocutory decision might be challenged. However, at such a hearing, prematurity may still be raised by the opposing party, and the court may refuse to hear the matter (see, for example, Deutsche Bank Securities Limited v. Ontario Securities Commission, 2012 ONSC 1576, 295 O.A.C. 1 (Div. Ct.)). [9] In the present case, the Act does not include the word “final” before “decision” in s. 31(1). However, the administrative law jurisprudence suggests that the right of appeal is only from a final determination of the merits by the administrative tribunal whose decision is challenged.
[10] Such an interpretation is also consistent with the wording of s. 71(1) of the Regulation. The record of the appeal is to include the “final” decision, as well as any preliminary decisions. While the appellant suggests that the regulation cannot restrict the scope of the statutory right of appeal, the regulation does not purport to do so. The prescribed requirements for the record are consistent with an interpretation of s. 31(1) as permitting appeals only after a full determination of the merits.
[11] Such an interpretation is also consistent with the policy of the Act, which sets out an administrative scheme for the review and appeal of orders that is meant to be expeditious (see Walsh v. Ontario (Disability Support Program), 2012 ONCA 463 at para. 77). To allow appeals of preliminary decisions would result in fragmentation of the administrative process and cause delay. . Di Geso v.Pascoe
In Di Geso v.Pascoe (Div Ct, 2020) the Divisional Court held that a motion for leave to appeal was premature when the proceedings below had not yet been fully resolved. Similar reasoning would apply to an appeal where leave wasn't required, and would probably has been dealt with under the much-vexed issue of interlocutory versus final decisions:[5] The administrative decision-making process has not ended. To proceed with the leave to appeal at this stage would fragment the TLAB proceeding, and lead to a misallocation of court time and the resources of the parties. Stratas, J.A. in C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, at paras. 31-32 has expressed the court’s concerns in the context of judicial review:Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.] . Jendrika v. Intact Insurance Company
In Jendrika v. Intact Insurance Company (Ont Divisional Ct, 2025) the Divisional Court dismissed a LAT SABS appeal, here from a reconsideration denial, that from an earlier denial of a time extension to file a reconsideration, that from an IRB and benefits denial.
Here the court considered whether it had jurisdiction to hear the appeal, on the argument that the reconsiderations and the time extension would have been, if granted, interlocutory orders:[16] The Respondent argues that this Court does not have the jurisdiction to consider an appeal from an interlocutory order such as a reconsideration decision. ....
....
Issue #1- Jurisdiction
[19] .... this Court does not have the jurisdiction to consider an appeal from an interlocutory decision of the LAT. In this case, I am of the view that both the time extension and reconsideration decisions are interlocutory decisions and not final ones. These two decisions do not resolve the merits of the case on a final basis. Therefore, they are not the proper basis for an appeal to this Court.
[20] The starting point for the analysis of this issue is section 11(6) of the Licence Appeal Tribunal Act 1999, S.O. 1999, c. 12, Sch.G, (“LATA”) which states:(6) An appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only. 2014, c. 9, Sched. 5, s. 5 (3). [21] This Court has repeatedly found that this section does not provide for appeals of interlocutory orders. Penney v. Co-operators General Insurance Company 2022 ONSC 3874 at paras. 8-17, Grewal v. Peel Mutual Insurance Co., 2022 ONSC 4082 and Rao v. Wawanesa Mutual Insurance Company 2024 ONSC 39.
[22] In Rao, the Court stated (at paras. 24-25):[24] There is also the decision of this Court in Grewal v. Peel Mutual Insurance Company, 2022 ONSC 4082. In Grewal, an appeal was quashed because the LAT decision at issue was not final. The LAT decision denied a request to add a punitive damages claim to a SABS application at an early stage of the LAT process. A reconsideration of that LAT decision had already been denied. Although the facts in Grewal are different, it supports the conclusion that LAT decisions denying a reconsideration do not automatically give rise to a right of appeal to this Court. The LAT Decision denying reconsideration of the denial of an extension of time was interlocutory and did not give rise to a right of appeal to this Court. I do not have to decide whether a reconsideration decision can ever be final – that case is not before me.
[25] I conclude that only the Merits Decision gives rise to a right of appeal in this case. [23] Rao leaves open the possibility that, in some circumstances, a reconsideration decision might be a final decision. This is not that case. In this case, the reconsideration decision is not of the merits of the case. It is a reconsideration of the decision denying an extension of time to file a reconsideration decision. That is clearly an interlocutory issue. Similarly, the lime limits decision is interlocutory.
[24] Since neither the extension decision nor the reconsideration of that decision are final decisions, I conclude that this Court does not have jurisdiction to consider them. I would dismiss the Appellant’s appeal of both of those decisions. The remaining two issues shall be considered in reference to the decision on the merits only.
|
