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Appeals - Final v Interlocutory (8). Soo Mill & Lumber Company Ltd. v. Pozzebon
In Soo Mill & Lumber Company Ltd. v. Pozzebon (Div Court, 2024) the Divisional Court quashed an appeal, here where the central issue was whether it was final or interlocutory (and thus in the wrong court, which it was):Test for distinguishing between final and interlocutory orders
[19] In Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), the court set out the test for distinguishing 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 applications, but it is interlocutory if the merits of the case remain to be determined.
See also, Paulpillai Estate v. Yusuf, 2020 ONCA 655, at paras. 15-17. [20] In Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 28 C.P.C. (4th) 16 (Ont. C.A.), at para. 17, the court adopted the following explanation of the Hendrickson test from Holmested and Watson: Ontario Civil Procedure, at 62-24:[ii][W]hat the Hendrickson test really means is that 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). [21] In Drywall Acoustic Lathing Insulation Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2020 ONCA 375, the court said, 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.”
....
Whether the motion judge finally determined issues of fact or law
[24] In 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, at paras. 9-10, the motion judge dismissed the plaintiffs’ motion for a certificate of pending litigation. The primary reason for denying the motion was that the action was statute-barred. On appeal, the plaintiffs argued that the order was final, based upon the reasons of the motion judge. The court held that the order was interlocutory. The reasons for denying the certificate would not be binding on the trial or summary judgment judge. They did not constitute a final determination of the limitation issue, because the court had not been asked to determine that issue for the purpose of granting or denying judgment.
[25] Similarly, in the present case, the motion judge was not asked to make a final determination of the scope of the trust. Soo Mill asked the court to determine whether there was a serious issue to be tried regarding its claim to the sale proceeds and the motion judge found, for the purposes of deciding the motion, that there was a serious issue to be tried only in relation to the amount owing to Soo for materials supplied to 3 Sherbrook (plus interest). That finding will not be binding on the trial judge.
Orders made on interlocutory motions presumed to be interlocutory
[26] In Skunk v. Ketash, 2016 ONCA 841, at para. 60, the court said, in the context of the dismissal of a motion for summary judgment, “in the absence of an express indication of the motion judge that her determination is to be binding on the parties at trial, it should be presumed that in expressing a conclusion on a point of law when dismissing a summary judgment motion, she is simply explaining why she concluded that there is a genuine issue requiring a trial, and did not intend her determination to be binding on the parties.”
[27] I see no reason why, in the absence of any indication in the motion judge’s reasons to the contrary, a similar presumption should not apply in this case.
Whether order is final because it disposes of the balance of money now in court, leaving Soo with less security for a successful claim
[28] In Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784, at para. 3, the court held that an order dismissing a motion for an interlocutory injunction is interlocutory, even where the practical effect of refusing the injunction ends some aspect of the litigation. The characterization of an order as being final or interlocutory depends upon its legal nature rather than its practical effect.
[29] Frezza is analogous to the present case. In Frezza, the underlying action was to set aside three alleged fraudulent conveyances. The plaintiff’s motion for certificates of pending litigation was dismissed. At the time of the motion, a sale of one of the properties was pending. On appeal, the court held the dismissal order to be interlocutory. The fact that without the certificates, the properties could be sold thus frustrating the plaintiff’s claim did not result in a finding that the order was final.
[30] The question of whether the entire proceeds of sale of 3 Sherbrook are trust funds for the benefit of Soo Mill was not finally determined by the order under appeal. Soo’s position on this issue amounts to an argument that because FP may dissipate the balance of the sale proceeds before the case reaches trial, its right to receive those proceeds has been finally determined.
[31] While it is true that the order provided for payment out of court of the balance of the sale proceeds, the reason for that was that the money had been paid into court pending the hearing of the motion and the motion having been determined, there was no basis upon which to order that the money remain in court.
[32] If the motion had been dismissed in its entirety on its initial return date, it would clearly have been interlocutory because it would have had no effect on the claims or defences. The action would have proceeded as it would have, had the motion not been made. The fact that an interim order was made or that the motion was allowed in part cannot be relied on to argue that the order as made was final.
[33] An order under rule 45.02 is discretionary, and by limiting the scope of the payment into court, the order did not take away anything to which Soo was otherwise entitled. It remains open to Soo to argue at trial that the entire proceeds of sale are subject to the trust, and if successful in doing so, to obtain relief accordingly.
Analogous orders that have been held to be interlocutory
[34] There being no specific authority on the question of whether orders dismissing (or partially dismissing) motions under rule 45.02 are final or interlocutory, a consideration of the most closely analogous cases is instructive. These include Deltro (order dismissing motion for interlocutory injunction is interlocutory) and Frezza (order dismissing motion for certificate of pending litigation is interlocutory).
[35] Another analogous case is Cook v. Ovenden, [2004] O.J. 675 (C.A.). In Ovenden, the plaintiffs had obtained an ex parte Anton Pillar order permitting them to search the business premises of the various defendants and seize documents and computer records. The order was subsequently set aside. On appeal, the court held that the setting aside order was interlocutory. Important as the issue of entitlement to the Anton Pillar order was, it was collateral to the subject-matter of the litigation. . J.M. v. B.S.
In J.M. v. B.S. (Ont CA, 2024) the Ontario Court of Appeal considered whether an order is final or interlocutory, where the issue was child vaccination:[11] Second, the mother argues that the language used to describe the order is less important than the character of the order. In this case, once the child is vaccinated, there is no going back; the vaccinations cannot be undone. I accept that the court must look at the character of the order to determine whether it is final rather than interlocutory: Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, 142 O.R. (3d) 317, at para. 7. Many interim or interlocutory decisions give parties the ability to do things that cannot be undone, but this does not make an order final. As this court has stated, “the characterization of the order depends upon its legal nature, not its practical effect”: Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16. In deciding whether an order is final or interlocutory, the crux of the issue is whether the court has finally determined an issue between the parties: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16; Sypher v. Sypher (1986), 1986 CanLII 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.), at p. 413.
[12] In this case, the court decided parental decision-making over vaccination only on an interim basis. At trial, the court will decide this issue on a final basis. While the child may receive some vaccines in the meantime, this on its own does not mean that the vaccination order is final. It also does not mean that the mother has no avenue of appeal. It simply means that she must bring her proposed appeal in the Divisional Court after first obtaining leave of that court.
[13] The mother relies on this court’s decision in J.N. v. C.G., 2023 ONCA 77, 477 D.L.R. (4th) 699, leave to appeal refused, [2023] S.C.C.A. No. 112 to argue that the vaccination order is final. This court’s decision in J.N. and the decision below do not indicate that the order at issue in that case was made on a temporary or interim basis. The order made below simply directed that the mother was to have sole decision-making authority over the children COVID vaccines: J.N. v. C.G., 2022 ONSC 1198, at para. 88. Accordingly, it appears that it was a final order. In contrast, in A.V. v. C.V., 2023 ONSC 1634, 91 R.F.L. (8th) 473 (Div. Ct.) the Divisional Court dealt with an appeal arising from an order granting interim decision-making to a father over vaccination issues. In that case, the mother argued that the court should never make such orders on an interim basis because vaccines are irreversible. However, quite rightly, the Divisional Court noted that it is appropriate for the court to make such orders as long as they are based on the best interests of the child: A.V., at para. 7. . Angel Capital Finance Inc. v. Jawaid
In Angel Capital Finance Inc. v. Jawaid (Ont CA, 2024) the Divisional Court considered the definition of an interlocutory judgment, and that it is not binding on the trial court:[2] .... Such an order is interlocutory because it does not determine the rights of the parties, but only the procedure by which those rights will be determined: Roblin v. Drake, 1938 CanLII 54 (ON CA), [1938] O.R. 711 (C.A.). The reasons of Fowler Byrne J. that explained why the default judgment was set aside were not binding on the trial judge: Simmonds v. Simmonds, 2013 ONCA 479, 117 O.R. (3d) 479. . Lilleyman v. Bumble Bee Foods LLC
In Lilleyman v. Bumble Bee Foods LLC (Ont CA, 2024) the Ontario Court of Appeal considered a class action appeal route issue, here as to whether the order below was final or interlocutory:ANALYSIS
(1) The appeal should not be quashed on jurisdictional grounds
[38] As noted above, the respondents argue that the appeal should be quashed because s. 30(1) of the CPA as it read on October 23, 2018 (the date the Claim was commenced) provided for an appeal from an order denying certification to the Divisional Court. The respondents argue that the motion judge’s dismissal of the motion to certify the actions as class proceedings is a procedural and interlocutory order that does not finally dispose of the Claim and is thus not directly appealable to this court.
[39] The appellant argues that this court has jurisdiction over the appeal since, in substance, the motion judge’s order went beyond merely refusing to certify the action and effectively brought it to an end. The practical effect of the motion judge’s order is that there is no cause of action that survives for the plaintiff to pursue, either individually or by way of a class proceeding.
[40] As Doherty J.A. emphasized in Obodo v. Trans-Union of Canada, Inc., 2022 ONCA 814, 164 O.R. (3d) 520, at paras. 18-19, the appropriate appellate forum should be determined by reference to the substance of the challenged order and not necessarily the label placed on the motion giving rise to the order. Where the practical effect of an order on a certification motion is to bring a proceeding to an end, that order is directly appealable to this court.
[41] I agree with the appellant that although the motion judge’s order in terms merely dismissed the motion for certification, its practical effect was to bring the Claim to an end. The motion judge found that not only had the appellant failed to plead the necessary elements of a cause of action, but it would also not be possible for her to do so given the fundamental factual differences between the Canadian and U.S. markets for tuna.
[42] In short, if the order below stands, the proceedings commenced by the plaintiff are effectively over, even if she were to pursue the Claim individually rather than as a class proceeding. Accordingly, the appeal is properly before this court. . Crete v. Ottawa Community Housing Corporation
In Crete v. Ottawa Community Housing Corporation (Ont CA, 2024) the Ontario Court of Appeal defines an interlocutory order:[15] It is well established that an interlocutory order is one which does not determine the real matter in dispute between the parties, or any substantive right to relief of a plaintiff or a substantive defence of a defendant: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at paras. 16-17; Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16, leave to appeal refused, [2021] S.C.C.A. No. 373. . Gong v. OSC
In Gong v. OSC (Div Court, 2024) the Divisional Court considered the final versus interlocutory order distinction, here in a Securities Act/Capital Markets Tribunal (CMT) context:[8] Mr. Gong argues the motion judge erred in law in finding the Tribunal’s decision was not a final decision. Mr. Gong argues the Tribunal’s decision was a final decision in respect of third-party rights. He argues that if the hearing on the merits proceeds, the privacy interests of third-parties will be violated. Mr. Gong argues the motion judge failed to consider the unique purpose of the D.P. v. Wagg regime when deciding that the Tribunal’s decision was not a final decision.
[9] We do not accept Mr. Gong’s argument.
[10] The motion judge applied the correct law in deciding whether the Tribunal’s decision was final. This Court has previously found that a final decision under the Securities Act is one that determines the merits of the allegations against a defendant, including the imposition of a sanction: Cheng v. Ontario Securities Commission, 2018 ONSC 2502 (Div. Ct.). While the analysis might be different if a third-party to the proceedings was seeking to review a decision by the Tribunal that directly affects their privacy rights, the motion judge was correct in finding that Mr. Gong’s motion was premature because the Tribunal’s decision did not finally dispose of the proceedings against him: R. v. McNeil, 2009 SCC 3 at para. 9.
[11] Contrary to Mr. Gong’s submissions, the motion judge was alive to the unique nature of the issues raised by the application of the special procedure in D.P. v. Wagg. The motion judge cited another decision of this court that expressly addressed whether a decision on the application of the D.P. v. Wagg procedure is a final or interlocutory decision: Ontario (Attorney General) v. Ontario Secondray Schools Teacher Federation, 2015 ONSC 2438 (Div. Ct.).
[12] The motion judge made no error in finding that the Tribunal’s decision on Mr. Gong’s pre-hearing motion was not a final decision in this case and, as a result, this court has no jurisdiction to hear his appeal. This motion is, therefore, dismissed. . Storoszko & Associates v. 1489767 Ontario Limited [dismissal of set aside judgment]
In Storoszko & Associates v. 1489767 Ontario Limited (Ont CA, 2024) the Court of Appeal considered an appellate motion to dismiss an appeal, such appeal being brought against dismissed R59.06 [really R19.08] set aside motion, which was in turn moved to vary a (default) mortgage action.
Here the court dismisses the respondent's position that the underlying R59.06 set aside motion [really, under R19.08] was interlocutory (thus the Court of Appeal was the correct court):[2] The moving party on the motion before us, Storoszko, argues that this court lacks jurisdiction to hear Mr. Hughes’ appeal because the order under appeal is interlocutory: Gallen v. Sutherland, 2023 ONCA 170, at para. 5; Elguindy v. Elguindy, 2021 ONCA 768, at para. 4. If the order is interlocutory, then any appeal is to the Divisional Court with leave of that court under s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[3] Although Mr. Hughes brought the motion to vary the original judgment under r. 59.06, we agree with his counsel that the motion judge dealt with it as a motion to vary the judgment under r. 19.08 [SS: 'Setting Aside Default Judgment'], which expressly permits a motion to vary a default judgment. While the motion judge mistakenly referred to r. 19.02 in his reasons, his analysis in substance reflects the proper approach under r. 19.08. The factors the motion judge listed and applied were the factors that this court has set out for the determination of whether a default judgment should be set aside or varied under r. 19.08: Mountain View v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 47-49.
[4] The dismissal of a motion to vary a final judgment is axiomatically itself a final judgment. Therefore, the appeal lies to this court. The motion to quash is dismissed.
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