Appeals - Final v Interlocutory Orders (3). Xela Enterprises Ltd. v. Castillo
In Xela Enterprises Ltd. v. Castillo (Ont CA, 2014) the Court of Appeal made the following salutory comments on the distinction between interlocutory and final orders, as they condition the availability and route of appeal:
 We agree that the Thorburn Order is an interlocutory order.. Walchuk Estate v. Houghton
 The Thorburn Order does not determine the real matters in dispute between the parties nor, as the appellants acknowledge, does it deprive the appellants of any substantive defence, including the right to challenge the jurisdiction of the Ontario courts over the matters at issue. Although the Thorburn Order determined the issue raised on the motion below – the validity of the respondents’ efforts to effect service of their amended pleading – it did not address the merits of the underlying action or the lis between the parties. Moreover, any defences that the appellants had before this action was commenced are still alive. The Thorburn Order, therefore, is interlocutory in nature: see Hendrickson v. Kallio, 1932 CanLII 123 (ON CA),  O.R. 675, 4 D.L.R. 580 (C.A.); Ball v. Donais 1993 CanLII 8613 (ON CA), (1993), 13 O.R. (3d) 322, 64 O.A.C. 85 (C.A.); Nantais v. Telectronics Proprietary (Canada) Ltd.,  O.J. No. 1220, 62 A.C.W.S. (3d) 422 (C.A.). See also Satchidananthan v. Sivanesan, 2013 ONSC 7515 (CanLII), 2013 ONSC 7515 (Sup. Ct.).
In Walchuk Estate v. Houghton (Ont CA, 2015) the Court of Appeal made the following comments on the distinction between interlocutory and final orders:
 The question whether orders under appeal are final or interlocutory has generated a lot of case law in this court. Some of the cases are not easily reconcilable. The starting point is to look at the judgment or order itself, and not the reasons for judgment. See Ashak v. Ontario, 2013 ONCA 375 (CanLII); and Trainor v. Canada (Customs and Revenue Agency), 2011 ONCA 794 (CanLII).. Meisels v. Lawyers Professional Indemnity Company
 Here, if one were to look at the judgment of Harper J. alone, his order appears to be interlocutory. It adjourns, rather than finally disposes of, the contempt motion. That was the view taken by our colleague, Tulloch J.A.
 But, in some cases, to determine whether an order is truly final or interlocutory, one needs to look at the reasons. This is one of those cases. If the reasons show that a defendant has been deprived of a substantive right or defence that could resolve all or part of the proceedings, then the order is final. See Ball v. Donais, 1993 CanLII 8613 (ON CA),  O.J. No. 972; Abbot v. Collins, 2002 CanLII 41457 (ON CA),  O.J. No. 4058; Ashak, at para. 17.
 In this case, the only question before Harper J. – and it was a question of law – was whether Houghton could still be liable for contempt though he had declared bankruptcy. Harper J. decided that question. Had he ruled that s. 69 of the BIA stayed the contempt proceedings, that ruling would have put an end to those proceedings. Because he ruled otherwise, Houghton has potentially been deprived of a right or defence that would have ended the proceedings against him. For this reason, Harper J.’s judgment is a final order. Of course, whether Harper J. was right or wrong must be decided by the panel hearing the appeal.
In Meisels v. Lawyers Professional Indemnity Company (Ont CA, 2015) the distinction between final and interlocutory Orders is often used to condition appeal rights (eg. leave of the court is typically required to appeal Superior Court interlocutory orders). In this case the Court of Appeal made the following characterization of a final Order:
 An order that does not finally dispose of the rights of the parties to the litigation will be a final order for purposes of an appeal if it disposes of an issue that “deprive[s] the defendant of a substantive right which could be determinative of the entire action”: Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (Ont. C.A.), at p. 324.. Fram Elgin Mills 90 Inc. v Romandale Farms Limited
In Fram Elgin Mills 90 Inc. v Romandale Farms Limited (Ont CA, 2016) this Court of Appeal case the court discusses the vexed question of when an Order below is interlocutory or final, as that distinction determines it's appeal route:
 An order granting leave to amend a pleading is an interlocutory order: see Dynasty Furniture Manufacturing Ltd. v. Toronto-Dominion Bank, 2015 ONCA 137 (CanLII), at paras. 5-7; Natario v. Rodriguez, 2015 ONCA 227 (CanLII), 71 C.P.C. (7th) 285, at para. 7. An order adding a party defendant is also an interlocutory order: see Hunter v. Richardson, 2013 ONCA 731 (CanLII), at para. 2. The rationale in both instances is that the litigation continues and the order made does not affect a party’s substantive rights.. Chirico v. Szalas
 By contrast, an order under r. 21.01(1)(a) to determine a question of law before trial where the determination disposes of all or part of a claim or defence is final because it precludes the party from raising the issue going forward: see Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), at para. 3; Abbott v. Collins (2002), 2002 CanLII 41457 (ON CA), 62 O.R. (3d) 99 (C.A.), at paras. 5-7. Where an order deprives a party of a substantive right that could be determinative of the action, that order is final: Stoiantsis v. Spirou, 2008 ONCA 553 (CanLII), 91 O.R. (3d) 184, at paras. 19-22.
 The nature of the underlying motion is an important consideration in deciding whether the order is final or interlocutory. For instance, regardless of the reasons given by the judge for dismissing a motion under r. 21.01(1)(b) to strike a pleading on the ground it discloses no reasonable cause of action or defence, “it is reasonable to think that … the judge does not have the power to make a final order under that provision”: S. (R.) v. H. (R.) (2000), 2000 CanLII 17038 (ON CA), 52 O.R. (3d) 152 (C.A.), at para. 18, per Morden J.A.
In Chirico v. Szalas (Ont CA, 2016) the Court of Appeal reviewed the distinction between interlocutory and final orders, in the context of determining where appellate jurisdiction lay on an appeal from a contempt motion:
 The classic statement on the distinction between a final and interlocutory order appears in this court’s decision in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA),  O.R. 675, at p. 678:. Rana v. Unifund Assurance Company
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. The court approved the following test for determining whether an order is final or interlocutory, at p. 680:
It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made finally dispose of the rights of the parties? It if does, then I think it ought to be treated as a final order, but if it does not it is then, in my opinion, an interlocutory order. In Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), this court added a gloss to the distinction drawn in Hendrickson between a final and an interlocutory order. The court held that an order that does not finally dispose of the rights of the parties, but that finally disposes of an issue raised by a defence, and thereby deprives the defendant of a substantive right that could be determinative of the entire action (such as a statutory limitation period defence), is a final order.
 The Hendrickson distinction between final and interlocutory orders was further refined in Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.). In that case, Morden A.C.J.O. held that an order disposing of an application under r. 14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is a final order because it ends the particular proceeding before the court. This is so even if the order in question does not finally resolve the entire dispute between the parties. The critical question is whether the order resolves the matter in dispute in the application, and not some other proceeding that may be ongoing.
 The character of an order is determined by its legal effect, rather than the nature of the motion that brought it about. Categorizing an order as final or interlocutory does not turn on the particular circumstances of the plaintiff or defendant who is affected by the order. As Morden A.C.J.O. explained in Laurentian Plaza Corp. v. Martin (1992), 1992 CanLII 7561 (ON CA), 7 O.R. (3d) 111 (C.A.), at p. 116:
The question of categorization which determines access to appellate review must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case. As I have indicated, jurisdictional rules should be as clear as possible and their application should not be beset with factual disputes which themselves may be protracted and difficult to resolve. An interlocutory motion may produce an order that is either final or interlocutory. Moreover, different motions can result in either a final or an interlocutory order.
 It may be fair to say that this court’s decisions relating to whether dispositions of motions seeking a contempt order are final or interlocutory are not a model of clarity. However, in my view, the order under appeal is a final order. I come to this conclusion based on the following review of this court’s decisions on this issue.
 For context, I start with motions in which the court has found a party to be in contempt of court.
 In Bush v. Mereshensky, 2007 ONCA 679 (CanLII), 229 O.A.C. 200, at para. 10, this court indicated that it had “consistently held that a finding of contempt is a final order.” Bush has since been relied upon for the principle that a finding of contempt is considered to be a final order (see Mantella v. Mantella, 2009 ONCA 194 (CanLII), 246 O.A.C. 386, at para. 17; Leeming v. Leeming, 2016 ONSC 1835 (CanLII), 2016 ONSC 1835 (Div. Ct.), at para. 16).
 I now turn to orders, such as the one under appeal, in which the motion for contempt has been dismissed.
 In International Beverage Dispensers’ Union, Local 280 v. Kilgoran Hotels Ltd.,  O.J. No. 389 (C.A.), a grievor, who had been fired from his job, obtained judgment from the arbitration board ordering his reinstatement to his prior position. The respondent hotel refused to reinstate him to that position. The appellant union’s motion for an order finding the respondent in contempt was unsuccessful. The respondent appealed to this court. The question arose as to whether the order under appeal was final or interlocutory.
 The court in Kilgoran determined that the order was final, stating, at para. 11:
Applying what we understand to be the principles set out in the case of Hendrickson v. Kallio 1932 CanLII 123 (ON CA),  O.R. 675 and the comments thereon in Roblin v. Drake 1938 CanLII 54 (ON CA),  O.R. 711, we are all of the view that the order of Parker, J. determines the real matter in dispute between the parties in these proceedings; in other words, to use the language of Mr. Justice Middleton in the Hendrickson case, "the very subject matter of the litigation". It does not deal with a collateral matter as that term is used in cases. The order is not one which might be said to be a decision made during the course of proceedings but rather is one which finally disposes of the rights of the appellant to enforce the award which it claims to be entitled to enforce and we have come to that conclusion without taking into account what other order might have been made by Mr. Justice Parker. On the present state of the authorities that probably is quite irrelevant. [Emphasis added.] The case of Bassel’s Lunch Ltd. v. Kick et al.,  4 D.L.R. 106 (Ont. C.A.), also involved an appeal from the dismissal of a contempt motion. There, the appellant had alleged that the respondents had continued to picket the appellant’s restaurant despite an injunction order restraining them from doing so. In deciding that the order in question was final as opposed to interlocutory, the court explained, at p. 110:
This objection cannot be given effect to; such cases as Jarmain v. Chatterton (1882), 20 Ch.D. 493 and others discussed by the late Chancellor in Millar v. Macdonald (1892), 14 P.R. (Ont.) 499, effectually dispose of the question. Moreover the facts of the case plainly show that the order is final and not interlocutory. The respondents are not parties to the action; no proceedings are taken against them except one to stop their interfering with the plaintiff's business; the order appealed from denies the plaintiff this relief, finally and absolutely; there is nothing more to be done about it but to have the order reversed, so that the plaintiff may have the only relief sought. [Emphasis added.]
In Rana v. Unifund Assurance Company (Ont CA, 2016) the Court of Appeal had more to say on the distinction between final and interlocutory orders as it determines the appeal route:
 Both the January 5, 2016 order of Dow J. and the April 7, 2016 order of Dunphy J. are interlocutory orders. Neither order finally disposed of the rights of the parties nor any claim or defence raised: see Hendricksen v. Kallio, 1932 CanLII 123 (ON CA),  O.R. 675 (C.A.) and Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). As such, an appeal does not lie to this court and this court does not have jurisdiction.. Skunk v Ketash
In Skunk v Ketash (Ont CA, 2016) the Court of Appeal discusses the distinction between final and interlocutory orders as they determine the applicable appeal route, in the context of an appeal of a summary judgment order:
 There is no common law or inherent right of appeal. The Courts of Justice Act, R.S.O. 1990, c.C. 43, provides for the general appellate jurisdiction of this court and the Divisional Court in civil matters: see ss. 6, 19 and 21.9.1.
 Subject to certain exceptions – none of which are relevant in this case – an appeal lies to this court from a final order of a judge of the Superior Court of Justice. If an order is interlocutory, rather than final, the appeal lies to the Divisional Court, with leave: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.), at para. 15; Albert v. Spiegel (1993), 17 C.P.C. (3d) 90 (Ont. C.A.), at p. 91.
 The reason for the distinction is explained by Paul M. Perell and John W. Morden in The Law of Civil Procedure in Ontario, 2d ed. (Markham: Lexis-Nexis Canada Inc., 2014), at p.910:
¶12.41 In general terms, the policy underlying the distinction between interlocutory and final orders is the proportionality principle. For judicial decisions that are of comparatively less importance to the parties and the public than other decisions (particularly those other decisions that are determinative of the outcome of the litigation), there should be no appeal at all, or the right of appeal should be curbed by a leave requirement. [Footnote omitted.] A “final order” is one that finally disposes of an action or application, or that finally disposes of a “substantive right” of one of the parties: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA),  O.R. 675, at p. 680; Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), at p. 324; R.S. v. S.H. (2000), 2000 CanLII 17038 (ON CA), 52 O.R. (3d) 152 (C.A.), at para. 13; Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53 (CanLII), 330 O.A.C. 142, at paras. 22-23.
 Regrettably, the question of whether an order dismissing a summary judgment motion is a final order is not a novel one. In V.K. Mason Construction Ltd. v. Canadian General Insurance Group Ltd. (1998), 1998 CanLII 14615 (ON CA), 42 O.R. (3d) 618, Finlayson J.A. wrote this, at pp. 623-24 and 625-26:
When parties argue whether orders of this nature are final or interlocutory, they appear to lose sight of the fact that there is a remedy where the order is interlocutory, although admittedly, it is to another court and requires leave. It was apparent from the argument in this appeal that the appellant's real concern was not where to appeal the motions court judge's order allowing the action to proceed to trial. Rather, the real concern was that, unless overturned on appeal, the findings underlying this order would be binding on the judge who ultimately tried the action, either because the findings are res judicata or raise issue estoppel, or because, in this particular case, they are so detailed and incisive that the trial judge, even if he or she does not feel obliged in law to follow them, will show them great deference and adopt them as persuasive. The latter consideration may be a sound reason for allowing leave to appeal, but it is of no concern to this court. As to res judicata or issue estoppel in the context of a motion for summary judgment that is dismissed, I do not think that the motions court judge's reasons should be taken as anything more than his explanation for finding that there is a genuine issue for trial. It is the finding that there is a genuine issue for trial that is res judicata. This court reiterated in Ashak v. Ontario (Director, Family Responsibility Office), 2013 ONCA 375 (CanLII), 115 O.R. (3d) 401, at para. 7, that, in general, an order dismissing a motion for summary judgment is not a final order because a decision under r. 20 determines only that a genuine issue requiring a trial exists.
Conceptually, it may be difficult to accept that where a plaintiff or defendant moves for summary judgment and succeeds, the appeal from that summary judgment is to this court as of right whereas if the moving party fails to obtain a summary judgment, the order dismissing the motion is to the Divisional Court, and only with leave of that court. However, the distinction has a long tradition in the law. The summary judgment finally determines the issue or issues between the parties and gives rise to a plea of res judicata in subsequent proceedings on the same issue or issues. An order dismissing a motion for summary judgment, on the other hand, determines only that there is a genuine issue for trial and the issue or issues have not been finally resolved.
 Purported findings of fact by a motion judge who dismisses a summary judgment motion do not have binding effect in the subsequent proceeding unless the motion judge invokes her power under r. 20.05(1) to make an order specifying what material facts are not in dispute – a power that exists where summary judgment is refused or is granted only in part. As this court stated in Ashak, where a motion judge proposes to do so, she should specifically say so, and the order should refer to r. 20.05(1): para. 8, citing Leone v. University of Toronto Outing Club, 2007 ONCA 323 (CanLII), at para. 3.
 The same principle applies in the case of questions of law. At paras.11 and 13 of Ashak, the court wrote:
Like the court in Leone, it is our view that, if a motion judge dismissing a motion for summary judgment proposes to exercise the power under rule 20.04(4)[] to make a binding determination of law, the motion judge should specifically invoke the rule, and reference to the rule, as well as the legal determination made, should form part of the formal order. In our opinion, the issue of whether an order is final or interlocutory should not turn on the forcefulness of the reasons for the conclusion…. Ashak distinguished Almrei v. Canada (Attorney General), 2011 ONCA 779, 345 D.L.R. (4th) 475, in which an order dismissing a summary judgment motion was found to be a final order, and makes clear that Almrei “should not be viewed as establishing a general principle that the question of whether an order dismissing a motion for summary judgment is final can be determined based on a motion judge’s reasons”: para. 15.
In our view, in most instances, the content of the formal order is integral to determining what has been decided against a party in a fashion that is binding.
 Mr. Almrei had been held in custody for many years on two successive security certificates issued under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Ultimately, after a lengthy hearing, parts of which were held in camera or ex parte, the second security certificate was quashed by Mosely J. Mr. Almrei subsequently commenced a civil action against Canada for, among other things, negligent investigation, false imprisonment and various Charter breaches. He brought a motion for partial summary judgment, arguing that issue estoppel applied and the parties were bound by the findings made by Mosley J. The motion judge dismissed Mr. Almrei’s motion, explaining that Mr. Almrei sought to invoke the doctrine of issue estoppel as a sword to obtain summary judgment, rather than as a shield or defence to preclude litigation on matters already decided between the parties, and that the test for issue estoppel had not been met.
 This court dismissed the Attorney General of Canada’s motion to quash Mr. Almrei’s appeal to this court. At para. 4 of its analysis, this court noted that the hearing before Mosely J. involved hearing evidence that Mr. Almrei might never be in a position to call or even access. Thus, depriving Mr. Almrei of the ability to use the findings of fact by Mosely J. could deprive Mr. Almrei of substantive rights.
 At para. 7, this court concluded:
[Mr. Almrei] singled out for resolution the question of use of issue estoppel. A finding that issue estoppel is not available is a final determination of that issue of law. The decision of the motion judge has arguably deprived the appellant of a substantive right that could have been entirely determinative of the Attorney General's liability…. In Ashak, the court provided three reasons why Almrei should not be taken as establishing a general principle that where a judge purports to make a legal determination in reasons dismissing a summary judgment motion those determinations should be treated as binding.
 First, Mr. Almrei had formally singled out the precise legal issue to be decided. Unlike in Ashak, the precise scope of the point of law determined by the motion judge was clear.
 Second, the determination on the question of issue estoppel potentially deprived Mr. Almrei of the ability to prove his case.
 Third, Canada – the party that moved to quash the appeal on the basis that the order was interlocutory – maintained that the question of issue estoppel was res judicata.
 By distinguishing Almrei in that manner, the court left open the possibility that, in circumstances paralleling those in Almrei, a legal determination could be found to be binding, even if not included in the formal order.
 In Fanshawe College of Applied Arts and Technology v. AU Optronics Corp., 2015 ONCA 808 (CanLII), the motion judge made several determinations of law in the course of dismissing the defendants’ motion for summary judgment. When the defendants appealed to this court, the plaintiff moved to quash their appeal for lack of jurisdiction. In the course of its submissions, the plaintiff conceded that “nothing in the order sought to be appealed, or in the reasons of the motion judge in support of that order, precludes the [defendants] in any way from advancing at trial their arguments regarding s. 36(4) of the Competition Act or abuse of process as substantive defences or otherwise.” In light of that concession, this court quashed the appeal in a three-paragraph endorsement on the basis that the order below was interlocutory, and not final.