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Appeals - Final v Interlocutory Orders (2). S.B. v. J.M.
In S.B. v. J.M. (Ont CA, 2020) the Court of Appeal draws on distinction between an interlocutory versus a final order on whether the order is secondary to another order (the 'predicate' order):[2] We dismiss the motion on the basis that this court does not have jurisdiction to entertain the appeal. The costs award arises from an unsuccessful motion by the moving party to remove Epstein Cole as counsel for the respondent. An order dismissing a motion to remove solicitors of record for a party is an interlocutory order: Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 1998 CanLII 4519 (ON CA), 116 O.A.C. 103; Aptowitzer v. Ontario (1995), 1995 CanLII 854 (ON CA), 26 O.R. (3d) 254 (C.A.). The costs order arising from that motion is equally interlocutory as its status is drawn from the predicate order: White v. Garrow, [2011] O.J. No. 6482 (C.A.); Godard v. Godard, 2015 ONSC 3114 (Div. Ct.). Interlocutory orders of a Superior Court judge are appealable only to the Divisional Court with leave: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b). We would add that, even if the costs order were treated as separate and apart from the predicate order, it would still only be appealable to the Divisional Court since the amount in issue is not more than $50,000: Courts of Justice Act, s. 19(1.2)(a). . Kauffman v. Fazari
In Kauffman v. Fazari (Div Ct, 2020) the Divisional Court considers the distinction between a final and an interlocutory order:[16] An interlocutory order is one which does not determine the real matter in dispute between the parties but only some collateral matter. An order may appear final in the sense that it determines the very question in dispute but it is nevertheless interlocutory if the merits of the case remain to be determined: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.).
[17] The rule in Hendrickson has been expanded to include the circumstance where, even if an order does not finally dispose of the merits, it will be final for purposes of appeal if it deprives a party “of a substantial right which could be determinative of the entire action”: Stoiantsis v. Spirou, 2008 ONCA 553 at paras. 21-22. . Wright v. Strauss
In Wright v. Strauss (Ont CA, 2019) the Court of Appeal dealt with a knotty appeal route jurisdictional issue. Following the reasoning along is good exercise!:[1] The appellant appeals from the order (“Order”) of the motion judge, dismissing the application he commenced in 2016 against his daughters, on their own behalf and as trustees of the Wright Family Trust (“Trust”). For the reasons that follow, we conclude that this court does not have jurisdiction to hear this appeal, and we order that this appeal be transferred to the Divisional Court.
[2] The appellant also appealed from a second order (“Second Order”) of the motion judge, made at the same time, involving the same parties, and addressed in the same set of reasons as the Order. The appeal of the Second Order was properly made to this court and we dismissed that appeal: Wright v. Urbanek, 2019 ONCA 823.
[3] Pursuant to s. 255 of Ontario’s Business Corporations Act, R.S.O. 1990, c. B.16, as amended, (“OBCA”), an appeal lies to the Divisional Court from an order made under the OBCA. The Order finally resolved issues in an oppression application brought under the OBCA and the proper route of appeal is to the Divisional Court: Ontario Securities Commission v. McLaughlin, 2009 ONCA 280, 248 O.A.C. 54, at para. 16.
[4] While the appellant concedes that an appeal from the Order would normally be to the Divisional Court, he asserts that s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, and r. 6.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, permit this court to hear his appeal of the Order. Alternatively, he argues that this is one of those exceptional cases where it would be appropriate for Chief Justice of the Superior Court of Justice to designate this court as a panel of the Divisional Court for the purpose of hearing and determining the appeal.
[5] We reject these arguments.
[6] First, s. 6(2) of the Courts of Justice Act permits this court to hear and determine an appeal that lies to the Divisional Court if an appeal in the same proceeding lies to and is taken to this court. But the two appeals are not in the same proceeding. Although the motion judge released only one set of reasons, he issued two orders for two factually related but legally distinct proceedings, each with its own originating process: the Order, striking a notice of application regarding the transfer of a mortgage from a family company to the Trust; and the Second Order, striking a statement of claim challenging the validity of the Trust.
[7] Second, r. 6.01(1) provides that “[w]here two or more proceedings are pending in the court” the court may, in the circumstances set out in that rule, order that the proceedings be heard together. However, this rule applies to proceedings in the same court, not proceedings in different courts: Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839, at para. 11.
[8] Finally, while the combined effect of ss. 13 and 18 of the Courts of Justice Act enables three judges of the Court of Appeal to sit as a panel of the Divisional Court with the consent of the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario, as Trotter J.A. notes in Tomec, at para. 14, this court rarely reconstitutes itself as the Divisional Court. Doing so involves bypassing the Divisional Court. We are not persuaded that this is one of those rare instances where this court should reconstitute itself as the Divisional Court.
[9] This is not a case where the jurisdictional issue was noticed only after the appeal had been argued: see Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 2001 CanLII 7060 (ON CA), 54 O.R. (3d) 76 (C.A.), at para. 12. Here, the court notified the parties of the potential jurisdictional problem nearly four months before the scheduled hearing date and advised them that it is not this court’s practice to take jurisdiction to hear an appeal if it concludes that the appeal was brought in the wrong court. The parties made no submissions to the court in response to the court’s letter notifying the parties of the potential jurisdiction problem.
[10] Moreover, it is not clear that the delay resulting from a transfer of the appeal of the Order to the Divisional Court will result in any “real” delay. In oral submissions, counsel for both parties agreed that if the appellant prevailed on his appeal from the Order, his application should be stayed pending completion of the steps remaining to be taken pursuant to the order of Conway J., dated October 7, 2016, made in the oppression application brought against the appellant by his daughters. . Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc.
In Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc. (Ont CA, 2020) the Court of Appeal again considered the distinction between a final and an interlocutory order as it conditioned the appeal route (Court of Appeal if final, Divisional Court with leave if interlocutory). The case refers to several other cases (not quoted here):[16] An interlocutory order is one which does not determine the real matter in dispute between the parties—the very subject matter of the litigation—or any substantive right to relief of a plaintiff or substantive right of a defendant. Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided: Hendrickson v. KalIio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678; Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.).
[17] In Sun Life Assurance Co. of Canada v. York Ridge Developments Ltd., 1998 CarswellOnt 4534 (C.A.), Weiler J.A. distinguished substantive matters, which are the subject of final orders, from procedural rights, which are not. She stated, at para. 13:As stated in Holmsted and Watson on Ontario Civil Procedure at 62-24: “…to be final an order must deal with the substantive merits as opposed to mere procedural rights, no matter how important the procedural rights may be. The test focuses on whether the order under appeal finally disposes of the rights of the parties, in the sense of substantive rights to relief (in the case of a plaintiff) or a substantive defence (in the case of a defendant).” [18] In Locking v. Armtec Infrastructure Inc., 2012 ONCA 774, 299 O.A.C. 20, this court considered whether an order resulting from a ‘carriage dispute’ between competing Ontario class actions is final or interlocutory. In a carriage dispute, the court is called upon to consider which of two competing class actions should be allowed to proceed—in other words, which representative plaintiff and counsel should be allowed to continue with the action they commenced for the benefit of the class and which representative plaintiff and counsel should have their proposed class action stayed. Mr. Locking was unsuccessful in the carriage dispute and his action was stayed. The motion judge refused to stay the competing action and permitted it to continue. Mr. Locking sought to appeal the decision to this court.
[19] This court held that it did not have jurisdiction over Mr. Locking’s appeal because the disposition of a carriage dispute is interlocutory. The order staying Mr. Locking’s action did not bring an end to his proceedings, as his action was not stayed for all purposes, but simply as a class action. The stay did not determine or terminate the claim. He could still prosecute his lawsuit as an ordinary action. Furthermore, the refusal to stay the competing action did not make the disposition final. If the plaintiff in the competing action succeeded in obtaining certification, Mr. Locking could opt out of the class and continue with his own action. The only effect of the impugned order was to prevent Mr. Locking from bringing an application to have his action certified as a class proceeding. As the court stated, at para. 17, Mr. Locking had “not lost his right to sue the defendants. He may remain as part of the [competing] proposed class action and may also seek to actively participate to protect his interests pursuant to s. 14 of the [Class Proceedings Act]. He may also opt out and pursue his individual action independently.” . Lee v. Lalu Canada Inc
In Lee v. Lalu Canada Inc (Ont CA, 2019) the Court of Appeal states once again on the distinction between final and interlocutory orders:[3] In order for an order to be a final order for the purpose of appellate jurisdiction that order “must deal with the substantive merits as opposed to mere procedural rights, no matter how important the procedural rights may be”, see Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 1998 CanLII 4519 (ON CA), 116 O.A.C. 103 at para. 13.
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