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Appeals - Final v Interlocutory Orders (5)

. Smith v. Smith

In Smith v. Smith (Div Ct, 2021) the Divisional Court once again considered the distinction between a final and an interlocutory order:
[4] ... As recently held in 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, at para. 7:
A final order disposes of the litigation, or finally disposes of part of the litigation: Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). An interlocutory order disposes of the issue raised, most often a procedural issue, but the litigation proceeds: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678.
. P1 v. XYZ School

In P1 v. XYZ School (Ont CA, 2021) the Court of Appeal once again summarizes the distinction between final and interlocutory orders, here in a constitutional context and with respect to a non-party (the media):
This court’s jurisprudence with respect to final/interlocutory orders

[11] For nearly 90 years, this court has approached the issue of final/interlocutory orders by beginning with this distinction laid out in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.):
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.
[12] Since then, this court has, on many occasions, addressed Hendrickson. In the recent decision of Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16, Jamal J.A. (as he then was) summarized the law as follows:
The main principles that determine whether an order is interlocutory or final are well known:

1. An appeal lies from the court’s order, not from the reasons given for making the order.

2. An interlocutory order “does not determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right. Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided”.

3. In determining whether an order is final or interlocutory, “one must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order”.

4. The question of 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.” In other words, the characterization of the order depends upon its legal nature, not its practical effect. [Citations omitted.]
....

[15] When an order is directed to a non-party to litigation, the issue of whether it is interlocutory or final is more difficult. In Houle v. St. Jude Medical Inc., 2018 ONCA 88, 420 D.L.R. (4th) 444, this court commented on this difficulty. Nordheimer J.A. considered two lines of cases. First, Smerchanski v. Lewis (1980), 1980 CanLII 1699 (ON CA), 30 O.R. (2d) 370 (C.A.), at para. 18:
This Court has held that an order made in a contest between a party to an action and someone who is not a party is a final order, appealable without leave, if the order finally disposes of the rights of the parties in the issue raised between them.
[16] That principle was followed in other cases including Morse Shoe (Canada) Ltd. v. Zellers Inc. (1997), 1997 CanLII 1573 (ON CA), 100 O.A.C. 116 (C.A.); Pennington v. Hawley, [2005] O.J. No. 3591 (C.A.); and CanWest MediaWorks Inc. v. Canada (Attorney General), 2007 ONCA 567, 227 O.A.C. 116.

[17] On the other hand, other cases have sought to confine the decision in Smerchanski to its particular facts, which means that it is not necessarily true that all orders directed to a non-party must be considered final: see CC&L Dedicated Enterprise Fund (Trustee of) v. Fisherman (2001), 2001 CanLII 4080 (ON CA), 55 O.R. (3d) 794 (C.A.), at para. 16:
Smerchanski was not intended to mean that all orders directed to a non-party must be final, and the principle expressed therein should not be further expanded in that way.
[18] In the end, Nordheimer J.A. did not determine the issue because he concluded that no substantive issue, nor right of the parties, was determined by the conditional approval order.

[19] We are left with the firm principles from Paulpillai that do not address either non-parties or the challenges that arise when those principles affect a non-party. If the Paulpillai factors are applied to non-parties, it follows that based on the principles from Fisherman, the order directed to a non-party must determine substantive rights for it to be final. The result, in my view, would be that:
1. A final order must deal with substantive rights.

2. All orders directed to non-parties are not necessarily final.

3. To be final, an order directed to non-parties must determine the non-parties’ substantive rights.
. Froom v. LaFontaine

In Froom v. LaFontaine (Ont CA, 2021) the Court of Appeal quashed an appeal as interlocutory and being brought without leave of the court:
[4] We agree with Ms. LaFontaine that the order under appeal is interlocutory. It is a “temporary” order and it does not dispose of any substantive issues between the parties on a final basis or deprive Mr. Froom of any possible defence: see Mantella v. Mantella, 2009 CarswellOnt 1060, 2009 ONCA 194, at para. 21.
. 1476335 Ontario Inc. v. Frezza

In 1476335 Ontario Inc. v. Frezza (Ont CA, 2021) the Court of Appeal held that the granting, lifting or refusal of a certificate of pending litigation is interlocutory:
[9] The order sought to be appealed in this case is an order denying leave to issue and register a certificate of pending litigation. A number of authorities from this court have held that an order granting or lifting a certificate of pending litigation is an interlocutory order: see Archer v. Archer (1975), 1975 CanLII 691 (ON CA), 11 O.R. (2d) 432 (C.A.); Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, 56 C.P.C. (8th) 307; 561895 Ontario Ltd. v. Metropolitan Trust Co. of Canada (1997), 14 C.P.C. (4th) 195 (Ont. C.A.), leave to appeal to S.C.C. refused, 26191 (November 20, 1997). The reason is that the granting or lifting of the certificate does not finally determine the litigation, which is ongoing. The refusal to grant a certificate is analogous. It does not finally determine any issue in the litigation, which remains ongoing. It is therefore an interlocutory order. As a result, the appeal does not lie to the Court of Appeal but to the Divisional Court with leave.
. 1476335 Ontario Inc. v. Frezza

In 1476335 Ontario Inc. v. Frezza (Ont CA, 2021) the Court of Appeal reviewed the main civil appeal routes:
(1) Is the order under appeal a final or an interlocutory order?

[6] The first issue to be determined was whether the order under appeal was a final or an interlocutory order. An appeal lies to the Court of Appeal from a final order of a judge of the Superior Court of Justice for an amount of $50,000 or more: Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 19(1)(a), and 19(1.2). A final order involving less than $50,000 is appealed to the Divisional Court: ss. 19(1)(a) and 19(1.2). An interlocutory order of a Superior Court judge is appealed to the Divisional Court, and requires leave of that court: s.19(1)(b). Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the grounds for granting leave to appeal to the Divisional Court:
62.02(4) Leave to appeal from an interlocutory order shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted.
[7] A final order disposes of the litigation, or finally disposes of part of the litigation: Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). An interlocutory order disposes of the issue raised, most often a procedural issue, but the litigation proceeds: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678.

[8] As is apparent from the strict requirements for leave to be granted to appeal interlocutory orders, appeals from such orders are intended to be very limited. On the other hand, appeals from final orders are as of right. As a result, the issue of whether an order is final or interlocutory determines not only which court has jurisdiction, but also the extent to which an appeal will lie from the order.
. M.E. v. Ontario

In M.E. v. Ontario (Ont CA, 2021) the Court of Appeal considered yet another final v interlocutory order issue:
[3] We conclude that M.E. was seeking to add new causes of action. An order refusing leave to amend pleadings to plead a new cause of action is final: Atlas Construction Inc. v. Brownstones Ltd. (1996), 46 C.P.C. (3d) 67 (Ont. Gen. Div.). So is an order dismissing a motion to add a party, which M.E. also appears to have been trying to do: Bryson v. Kerr (1976), 1976 CanLII 867 (ON SC), 13 O.R. (2d) 672 (Ont. Div. Ct.). Accordingly, leave to appeal is not required and an appeal lies as of right to the Court of Appeal: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b)
. Johnson v. Ontario

In Johnson v. Ontario (Ont CA, 2021) the Court of Appeal once again set out the distinction between final and interlocutory orders, here for purposes of determining the appeal route:
[11] As noted, interlocutory orders are appealable only to the Divisional Court and final orders are appealable to this court. Zarnett J.A. gave a compressed statement of the distinction between interlocutory and final orders in Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 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. Kallio, 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.).
See also Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97, [1994] O.J. No. 1592 (C.A.).

[12] Hoy A.C.J.O. discussed the rationale for the distinction between interlocutory and final orders in Skunk v. Ketash, 2016 ONCA 841, 135 O.R. (3d) 180, at para. 31:
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.]
See also Gerard Kennedy, “Civil Appeals in Ontario: How the Interlocutory/Final Distinction Became So Complicated and the Case for a Simple Solution?” (2020) 45:2 Queen’s L.J. 243, at pp. 255-57.

...

(3) Substantive and Procedural Rights

[20] The starting point for determining whether an order is final or interlocutory is Middleton J.A.’s primordial statement in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] 4 D.L.R. 580 (Ont. C.A.) at pp. 583-84:
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.
[21] The distinction between substantive and procedural rights was addressed by this court in Sun Life Assurance Co. of Canada v. York Ridge Developments Ltd. (1998), 1998 CanLII 4519 (ON CA), 116 O.A.C. 103, at para. 13:
As stated in [Holmested] 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).”
[22] However, in Buck Brothers, Morden A.C.J.O. made an important qualifying distinction. He found that the motion judge’s order, which determined the forum by staying a court action and requiring the parties to submit to arbitration, was a final order even though the real issue in dispute between the parties – the substance of the arbitration itself – was not decided. He explained at paras. 7 and 8:
I read the passage from Hendrickson v. Kallio as referring to “the real matter in dispute between the parties” in the proceeding which is before the court and not in some other proceeding which may, or may not, then be in existence. In accordance with this interpretation, I read "the litigation" in "the very subject matter of the litigation" as referring to the proceeding in which the order in question is made. Similarly, I read "the case" in "if the merits of the case remain to be determined" as also referring to the proceeding in which the order is made.

...

The foregoing conclusion is not merely a matter of interpreting the words in Hendrickson. It is, in my view, in accord with the purpose of a provision which categorizes orders for appeal purposes. I have difficulty concluding that an order on an issue raised in a proceeding which ends the proceeding is interlocutory simply because it does not finally determine another, quite possibly larger, issue between the parties which may be subsequently determined in some other proceeding or by some other process. [Emphasis in original.]
. Pinder v. Biggar

In Pinder v. Biggar (Ont CA, 2021) the Court of Appeal held that an appeal of a garnishment order, while the main litigation was still proceeding, was interlocutory:
[11] The Order is an interlocutory one. It was made within the oppression action Mr. Biggar commenced, not within the matrimonial litigation. The Order did not finally dispose of the rights of the parties in the oppression action, including any right to substantive relief sought by Mr. Biggar: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 680; Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 1998 CanLII 4519 (ON CA), 116 O.A.C. 103 (C.A.), at para. 13. Nor did it finally dispose of an issue raised by a defence in the oppression action, as Mr. Biggar is the plaintiff: Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). Nor does the Order end a discrete proceeding before the court, as the garnishment hearing was simply a step in the process to enforce cost orders made in the oppression action: Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.).
. Fontaine v. Canada (Attorney General)

In Fontaine v. Canada (Attorney General) (Ont CA, 2021) the Court of Appeal extensively considered the persistent 'final v interlocutory' issue:
[47] This court recently affirmed in Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16, that the test in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678, continues to govern in deciding whether an order is final or interlocutory. That test is as follows:
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.
[48] As Hendrickson teaches, the mere fact that the Order Under Appeal appears to have finally resolved the appointment of an ISA and the terms of the St. Anne’s Review does not make the order a final one. MacFarland J.A. confirmed this point in Waldman v. Thomson Reuters Canada Limited, 2015 ONCA 53, 330 O.A.C. 142, at para. 22, noting that if an order were deemed final simply because it disposed finally of whatever issue was before the court, “the distinction between interlocutory and final orders would cease to exist”.

[49] The material question is whether the Order Under Appeal finally resolved the “real matter in dispute between the parties”, meaning “the very subject matter of the litigation”. The real matter in dispute between the parties is whether Canada breached the disclosure obligations it owes to St. Anne’s IRS claimants under the IAP. In my view, the Order Under Appeal does not resolve that dispute. At most, it provides a procedure for making future findings that may bear indirectly upon that dispute.

....

Jurisdiction probably does not arise even under a “modified approach”

[55] For the sake of completeness, I will consider this court’s decision in Parsons v. Ontario, 2015 ONCA 158, 125 O.R. (3d) 168, rev’d on other grounds, 2016 SCC 42, [2016] 2 S.C.R. 162. In Parsons, at para. 44, LaForme J.A. (for the majority) took a “somewhat modified approach” in distinguishing between final and interlocutory orders within a national class action where the substantive merits and defences had already been determined by a judicially-approved settlement agreement.

[56] Applying this “somewhat modified approach”, LaForme J.A. characterized as final an order determining that supervisory judges from different provinces could sit together to hear concurrent motions for a proposed protocol extending the first claims deadline in the settlement agreement. LaForme J.A. found that the “essential character” of the RFD leading to the order was akin to an application to interpret a statute or contract under r. 14.05(3)(d). By analogy, LaForme J.A. held that the order was therefore final rather than interlocutory.

[57] Juriansz J.A. issued a strong dissent. He rejected the modified approach endorsed by LaForme J.A., saying it would be confusing. In Juriansz J.A.’s view, even where substantive rights have already been settled in a class action and no claims or defences remain to be tried, the traditional Hendrickson test should still be applied: Parsons, at para. 208. For Juriansz J.A., the real issue in dispute was whether the court should extend the deadline for filing first claims. He concluded that this issue was not finally resolved by determining the forum in which the court could hear the underlying motion. Therefore, according to Juriansz J.A., the order under appeal was interlocutory and this court did not have jurisdiction.
. Lad v. Marcos

In Lad v. Marcos (Ont CA, 2021) the Court of Appeal comments on when RCP R21.01(1)(a) motion rulings are final or interlocutory:
[5] The law is clear that not every unsuccessful motion under r. 21.01(1)(a) automatically [SS: ie. without leave to the Divisional Court] gives rise to a right of appeal, only those that “finally dispose of the issue raised by that defence, and thereby [deprive] 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 (C.A.).
. Azzeh v. Legendre

In Azzeh v. Legendre (Ont CA, 2017) the Court of Appeal clarifies where appellate jurisdiction lies for an appeal where both final and interlocutory Orders are impugned:
[21] Before turning to the issues on appeal, a few comments respecting jurisdiction must be made.

[22] Paragraph 1 of the order appealed from grants leave to amend the statement of claim to add the City and others as defendants. Granting leave to add party defendants is interlocutory: Hunter v. Richardson, 2013 ONCA 731 (CanLII), [2013] O.J. No. 5896.

[23] Paragraph 2 of the order grants leave to increase the prayer for relief and make other amendments consistent with the addition of the defendants. Paragraph 2 is also an interlocutory order: Merling v. Southam Inc., et al. (2000), 2000 CanLII 5621 (ON CA), 128 O.A.C. 261.

[24] The declaration that the action is not statute-barred in paragraph 3 of the order deprives the defendants of substantive defences and is therefore final: Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.).

[25] In general, where an order has both final and interlocutory aspects, the appeal lies to this court only from the final portion of the order: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.). Leave to appeal from the interlocutory portion must be obtained from the Divisional Court, at which point the appellant may move to have the appeals heard together in this court.

[26] However, in Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.), the court heard the appeal from both the final and interlocutory aspects of an order where “because the two issues are so interrelated … once the first issue was before this court, leave would inevitably have been granted on the second.” That is the case here. Whether the City was properly added as a defendant depends on whether the action against it is statute-barred. Therefore, both aspects of the appeal were heard by this court.
. Cheung v. Samra

In Cheung v. Samra (Ont CA, 2018) the Court of Appeal 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.
. Brunning v Fontaine

In Brunning v Fontaine (Ont CA, 2019) the Court of Appeal cites an authority on the final-interlocutory order distinction:
[6] One of the leading cases on the difference between final and interlocutory orders is Hendrickson v. Kallio, 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.


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