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Final v Interlocutory Orders (6)

. Aquino v. Aquino

In Aquino v. Aquino (Ont CA, 2022) the Court of Appeal considers the final versus interlocutory distinction:
[5] This court recently summarized the principles that determine whether an order is final or interlocutory in Paulpillai Estate v. Yusuf, 2020 ONCA 655 at para. 16:
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.]
. CHU de Québec-Université Laval v. Tree of Knowledge International Corp.

In CHU de Québec-Université Laval v. Tree of Knowledge International Corp. (Ont CA, 2022) the Court of Appeal set out a distinction between final and interlocutory orders:
[39] Sections 6(1)(b) and 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, make clear that only final orders are appealable to this court, while interlocutory orders are appealable to the Divisional Court, with leave. A final order is one which determines 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, while an interlocutory order is one which does not: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16; Johnson v. Ontario, 2021 ONCA 650, 158 O.R. (3d) 266, at paras. 11-12.
. Clayton v. Clayton

In Clayton v. Clayton (Div Ct, 2022) the Divisional Court considered final versus interlocutory orders involving an estate executor:
[3] This Court has held that an Order removing an estate executor is a final Order. Thus, any appeal would be to the Court of Appeal (Virdo v. Virdo 2013 ONSC 6235 (Div. Ct.)). This is consistent with the general understanding that an order that ends the proceeding before the court is not interlocutory merely because it does not determine another, possibly larger issue between the parties which may be subsequently determined in some other proceeding (Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.), at para. 8).

[4] The case of Assaf v. Assaf Estate, 1999 CarswellOnt 4308 (C.A.), 31 E.T.R. (2d) 157, on which the moving parties (the removed trustees) rely, is distinguishable. In that case there was an application to remove the executor of an estate. Rather than being granted, it was dismissed. The substantive rights of the parties were unchanged. The order dismissing the application was interlocutory. It “was part of the orderly administration of the estate” (Assaf at para. 1).
. Belton v. Spencer

In Belton v. Spencer (Ont CA, 2020) the Court of Appeal considered final versus interlocutory orders:
[47] Fourth, one of the classic articulations of the distinction between a final and an interlocutory order is that found in Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). There, this court stated that a final order is not only one that finally disposes of the rights of the parties to the litigation, but an order may also be final if it finally disposes of a defence and thereby deprives “the defendant of a substantive right which could be determinative of the entire action”: at p. 324.

[48] The appellant contends that the frequent references in the jurisprudence to the right to a civil jury trial as a “substantive right” signifies that an order striking a jury notice is a final order as described in Ball v. Donais. As the respondent points out, the difficulty with that submission is that an order striking out a jury notice does not deprive the appellant of a substantive right that could be determinative of the entire action. Such an order merely directs a mode of trial. And, as this court stated in Cowles, at para. 38, neither party has an unfettered right to determine the mode of trial: see also, Cheung v. Samra, 2018 ONCA 923, 431 D.L.R. (4th) 18, at para. 7; Williams v. Grand River Hospital, 2016 ONCA 793, 134 O.R. (3d) 319, at paras. 5-6.
. TD Bank v. Virgo

In TD Bank v. Virgo (Div Ct, 2022) the Divisional Court considered the final v. interlocutory distinction:
[15] In P1 v. XYZ School, 2021 ONCA 901 at paras. 11-12, the Court of Appeal recently summarized the well-established law in relation to determining whether an order is final or interlocutory for purposes of appeal rights:
[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.]
[16] Two further principles developed in the case law in relation to final/interlocutory orders are important in considering whether the order in this case is final or interlocutory. First, the content of the formal order is “integral” to determining whether an order is final or interlocutory: Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375 at para. 13. This principle derives from point #4 listed above in P1 v. XYZ School that the characterization of an order depends upon its legal nature, not its practical effect.

[17] Second, an order dismissing a summary judgment motion, in general, is not a final order: Ashak at para. 7; Skunk v. Ketash, 2016 ONCA 841 at paras. 32-35, and 58.
. Singh v. Heft

In Singh v. Heft (Ont CA, 2022) the Court of Appeal considered the frequent 'interlocutory v final order' issue:
[9] Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal lies to the Court of Appeal from “a final order of a judge of the Superior Court of Justice”, while s. 19(1)(b) provides that an appeal lies to the Divisional Court from “an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court”. Long ago, in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678, Middleton J.A. for the court explained the distinction between final and interlocutory orders:
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.
[10] Since Hendrickson, the court has, on many occasions, considered and refined the distinction between final and interlocutory orders. For example, in Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), at p. 324, the court held that even where an order does “not finally dispose of the rights of the parties to the litigation”, it will be final for the purposes of appeal if it disposes of an issue raised by way of defence and “thereby deprive[s] the defendant of a substantive right which could be determinative of the entire action.” And in Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.), the court held that an order disposing of an application is a final order if it ends the particular proceeding before the court, even if it does not finally determine another, quite possibly larger, issue between the parties which may be determined in a subsequent proceeding or process.

[11] Recently, in Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16, Jamal J.A. (as he then was) summarized the applicable principles 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.]
[12] The decision of this court in Karbaliotis v. Anaheim Unit Investors (1996), 1996 CanLII 715 (ON CA), 89 O.A.C. 58 (C.A.) exemplifies these principles. There, a judge set aside an assessment officer’s certificate of assessment and directed a trial of an issue. On appeal to this court, the appeal was quashed on the basis that it was interlocutory in that it did not finally dispose of the rights of the parties.

[13] Similarly, in Zaldin & Zaldin v. Carpenter, 1994 CarswellOnt 4517 (Div. Ct.), citing this court’s decision in Buck Brothers Ltd., the Divisional Court held that an order setting aside a certificate of assessment and remitting the matter for a new hearing was interlocutory. In contrast, in Somerleigh v. Brayshaw (1993), 15 C.P.C. (3d) 160 (Ont. Div. Ct.), the Divisional Court held that an order that set aside an assessment officer’s report but settled the account was a final order. The motion judge had finally determined the substantive issue between the parties.

[14] As in Kabaliotis and Zaldin, in the case before us, the motion judge set aside the certificate of assessment and directed that a new assessment be conducted before a different assessment officer. The motion judge did not finally dispose of the matter. The subject matter of the litigation between the parties and their substantive rights remain to be determined. As a result, the order Ms. Singh seeks to appeal is interlocutory.

....

[17] I do not agree with Ms. Singh’s submission. As mentioned, an appeal lies from the order, not from the reasons for decision. The order made by the motion judge is not similar to the orders relied upon by Ms. Singh: Ball; Stoiantsis v. Spirou, 2008 ONCA 553, 91 O.R. (3d) 184; Hopkins v. Kay, 2014 ONCA 514; and Abbott v. Collins (2002), 2002 CanLII 41457 (ON CA), 62 O.R. (3d) 99 (C.A.). In all of these cases, the court considered the order to be final because it disposed of a substantive right of the defendant by precluding it from raising an issue that could be determinative of the appeal. This is not the case here.

[18] Similarly, the evidentiary decision was interlocutory in nature as it did not determine the matter in dispute nor any substantive right: see e.g., Bonello v. Gore’s Landing Marina (1986) Limited, 2017 ONCA 632, 39 C.C.L.T. (4th) 175, at para. 14.
. 2582376 Ontario Inc. v. 2227418 Ontario Inc.

In 2582376 Ontario Inc. v. 2227418 Ontario Inc. (Div Ct, 2022) the Divisional Court considered the distinction between final and interlocutory orders (yet again):
[13] The Catalyst Capital Group Inc. v. Moyse, 2015 ONCA 784, at paras. 11 and 12, summarizes the test and acknowledges that the application of the test can be unclear:
In fairness to the parties, this court's decisions on the final/interlocutory distinction have not been models of clarity. Much ink has been spilled, and court and counsel time wasted in exploring the nuances. But the root principle that all can and do accept was expressed by Middleton J.A in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, [1932] O.J. No. 380 (C.A.) [at para. 20]:
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.
This important case is one to which this court frequently returns. See, for example, Waldman v. Thomson Reuters Canada Ltd., [2015] O.J. No. 395, 2015 ONCA 53, per MacFarland J.A., at para. 22. On the Hendrickson v. Kallio.
[14] I have also been provided with Paulpillai Estate v. Yusuf, 2020 ONCA 655, which provides some helpful summary principles underlying the test for whether an order is interlocutory or final, at para. 16:
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: see Grand River Enterprises v. Burnham (2005), 2005 CanLII 6368 (ON CA), 197 O.A.C. 168 (C.A.), at para. 10; Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, at para. 21; and Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404, 131 O.R. (3d) 455, at para. 33.

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”: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16, citing 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 Amphenol, at para. 18.

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”: Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, 142 O.R. (3d) 317, at para. 7.

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”: Laurentian Plaza Corp. v. Martin (1992), 1992 CanLII 7561 (ON CA), 7 O.R. (3d) 111 (C.A.), at p. 116; see also Amphenol, at para. 19. In other words, the characterization of the order depends upon its legal nature, not its practical effect: see Ontario Medical Assn. v. Miller (1976), 1976 CanLII 679 (ON CA), 14 O.R. (2d) 468 (C.A.), at p. 470; Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784, 139 O.R. (3d) 239, at para. 3.
[15] I have considered a number of other cases brought forward by the parties and the very recent decision of the Ontario Court of Appeal in Johnson v. Ontario, 2021 ONCA 650, which not only sets out the governing principles but also elaborates on them in a useful way.



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