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Final v Interlocutory Orders (6). Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited [ICAA s.9 stay]
In Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited (Ont CA, 2023) the Court of Appeal considered an International Commercial Arbitration Act, 2017 case, specifically what standard of proof applies to the stay of a court-order Ontario court application [ICAA s.9] in favour of arbitration.
Here the court considers whether such an order is final or interlocutory:[16] This court has held that an order denying a motion for a stay under s. 7 of the Arbitration Act, 1991, S.O. 1991, c. 17, is final in nature for the purposes of determining the route of appeal as it finally determines the forum in which the dispute between the parties is to be resolved: Smith Estate v. National Money Mart Company, 2008 ONCA 746, 303 D.L.R. (4th) 175, at para. 30; Griffin v. Dell Canada, 2010 ONCA 29, 315 D.L.R. (4th) 723, at para. 26. This is also the case for orders granting a stay: see the cases cited in Huras v. Primerica Financial Services Ltd. (2000), 2000 CanLII 16892 (ON CA), 137 O.A.C. 79 (C.A.), at para. 13.
[17] An order granting a stay of an action under s. 9 of the ICAA has the same legal nature. A stay order effectively ends the action before the court. The decisions in Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, and Rogers Wireless Inc. v. Muroff, 2007 SCC 35, [2007] 2 S.C.R. 921, re-affirmed the general principle that normally challenges to the jurisdiction of an arbitrator must first be referred to the arbitrator (unless they involve pure questions of law or questions of mixed fact and law that can be determined by a superficial review of the evidence in the record). Underlying that general principle is the working assumption that if the court grants a stay and does not decide an issue in the action, then the arbitrator will proceed to decide it: Uber Technologies Inc. v. Heller, 2020 SCC 16, [2020] 2 S.C.R. 118, at para. 38. This practical assumption that a stay will end an action for all intents and purposes supports characterizing an order granting a stay under s. 9 of the ICAA as final in nature for the purpose of determining the route of appeal. . NDrive, Navigation Systems S.A. v. Zhou
In NDrive, Navigation Systems S.A. v. Zhou (Ont CA, 2023) the Court of Appeal considers the distinction between final and interlocutory orders:[11] In Hendrickson, Middleton J.A. gave the classic explanation of the distinction between final and interlocutory orders 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. [12] To this we would add: “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 [or have already been] determined.”
[13] The cases since Hendrickson have also adapted the distinction between substantive merits and procedural rights in determining whether an order is final or interlocutory. In Drywall Accoustic v. SNC Lavalin, 2020 ONCA 375, Zarnett J.A. noted, at paras. 16 and 17: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.).
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).” . Gallen v. Sutherland
In Gallen v. Sutherland (Ont CA, 2023) the Court of Appeal identifies a R59.06 varying order as interlocutory:[5] An order dismissing a r. 59.06 motion to vary is an interlocutory order: Elguindy v. Elguindy, 2021 ONCA 708, at para. 6. The July 22, 2022, order dismissed the appellant’s motion to vary and the August 25, 2022 disposition, although stated to be pursuant to r. 37.14, was to the same effect. Given their interlocutory nature, jurisdiction lies with the Divisional Court and not this court. . Haudenosaunee Development Institute v. Metrolinx
In Haudenosaunee Development Institute v. Metrolinx (Ont CA, 2023) the Court of Appeal considers when an injunction-related order is final or interlocutory, here for appeal route purposes:[33] In Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16, this court summarized the principles that inform the determination of whether an order of the Superior Court is final or interlocutory for purposes of the CJA appeal routes. 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.”
[34] In determining whether an order under appeal 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”: Paulpillai Estate, at para. 16, citing Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, 142 O.R. (3d) 317, at para. 7.
[35] The starting point for our analysis is HDI’s Notice of Application, which provides the framework of the litigation it commenced. The Notice of Application claims a number of declarations, including that the Haudenosaunee have treaty rights over the Osgoode Hall site, that the Ontario Line Project will infringe those rights, that Metrolinx owes a duty to engage with the Haudenosaunee and the HCCC in respect of the Project, and that Metrolinx has not adequately engaged. The Notice of Application also requests an injunction preventing Metrolinx from taking any further actions on the Osgoode Hall site until it adequately engages with HDI.
[36] Although HDI submitted that the claims were just to provide a foundation or cause of action in which to claim an injunction, the Notice of Application reveals that the issues in the Application concern more than the requested injunction. Much of the Application turns on a determination of the scope of Haudenosaunee treaty rights and HDI’s claim that Metrolinx owes a duty of engagement. Contrary to HDI’s submissions, there is nothing in the Notice of Application to suggest that the subject matter of the application was limited to the trees at Osgoode Hall.
[37] Nor does the fact that the Application claims an injunction mean that the order made by Hackland J. is a final order. While orders made under s. 101 of the CJA have been characterized as final when made in applications (see e.g., Soberman Isenbaum Colomby Tessis Inc. v. St. James Securities Inc. (2002), 2002 CanLII 44971 (ON CA), 60 O.R. (3d) 155 (C.A.), and Ontario v. Shehrazad Non-Profit Holding Inc., 2007 ONCA 267, 85 O.R. (3d) 81), in this case, the order under appeal was made in the context of a motion. In its Amended Notice of Motion, HDI sought “injunctive relief on an interim and/or interlocutory basis preventing ... Metrolinx, from taking any further actions on the Osgoode Hall site … until [HDI’s] application [was] heard and decided”. The motion did not seek the same injunctive relief that was sought in the Application (an injunction that would extend until Metrolinx adequately engaged), and there is nothing in the Amended Notice of Motion to suggest that HDI was seeking a final determination of any issue when it brought its motion.
[38] Similarly, there is nothing in the order itself to suggest that any issue in the application proceeding was determined on a final basis. The order simply dismissed the motion for an interlocutory injunction.
[39] We also considered the reasons of Hackland J. for any indication that he determined any issue in the Application on a final basis. In our view, he did not. Justice Hackland’s reasons make it clear that he was only determining HDI’s request for an interlocutory injunction to prevent the removal of trees. He concluded that there was no irreparable harm to HDI connected with the tree removal and that the balance of convenience favoured Metrolinx. In the course of his reasons, he noted that HDI was seeking declaratory relief as to the scope of its rights and to consultation or engagement, but that “these issues [were] not being decided on [the] injunction motion”: at para. 18. He also noted that whether HDI had “the right to consent or decline to consent to the removal of trees and to be entitled to receive compensation … may be addressed when the claims herein for declaratory relief are heard”: at para. 21.
[40] Finally, we considered HDI’s argument that the practical effect of the order refusing an injunction to prevent the trees from being cut down was to bring an end to the litigation. We do not accept this argument in light of the affidavit evidence. The affidavits refer to a history of communications between the parties with respect to the Ontario Line Project and the Osgoode Hall site and unresolved issues that extend beyond the immediate concern respecting the trees at the Osgoode Hall site. 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: see e.g., Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, 56 C.P.C. (8th) 307, at paras. 23-24; Ontario Medical Association et al. 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.
[41] In conclusion on this issue, we found that the order dismissing HDI’s motion is interlocutory in nature and therefore, the appeal was not within the jurisdiction of this court. The order was made in the context of HDI’s motion for interlocutory injunctive relief. Although the order determined the fate of the trees at Osgoode Hall on a final basis (in view of Metrolinx’s determination to proceed with the removal of the trees as part of its work on the Ontario Line Project), it did not determine the “real matter in dispute between the parties”, which was the Haudenosaunee treaty rights and their claim to a duty of engagement. As such, we quashed the appeal to this court. . Ncube v. Hassen
In Ncube v. Hassen (Ont CA, 2022) the Court of Appeal considered the nature of an interlocutory order:[17] In this case, the motion judge’s order appears to be interlocutory and therefore this court is unlikely to have jurisdiction over the appeal. Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal lies to this court from a “final order” of the Superior Court. In contrast, in accordance with s. 19(1)(b) of the Courts of Justice Act, an appeal from an interlocutory order of the Superior Court lies to the Divisional Court, with leave.
[18] As held 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. [Citations omitted.] . 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.
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[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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