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Appeal - Final v Interlocutory (9). KE v. 3270679 [misnomer]
In KE v. 3270679 (Ont Divisional Ct, 2025) the Divisional Court dismissed an appeal from interlocutory motion orders regarding pleadings and adding parties.
Here the court considered an order "regarding the substitution or addition of parties on the basis of misnomer" to be final:[19] An associate justice’s decision regarding the substitution or addition of parties on the basis of misnomer has been considered a final decision and appealed to a single judge of the Divisional Court: Reimer v. City of Toronto, 2023 ONSC 484 (Div. Ct.) and Streamline Foods Ltd. v. Jantz Canada Corporation, 2011 ONSC 1630 (Div. Ct.), aff’d 2012 ONCA 174. . Crowley v. Crowley [dismissal for order non-compliance]
In Crowley v. Crowley (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from an estates application order "dismissing [the applicant's] application challenging the validity of his deceased mother’s will".
Here the court considers when an order dismissing an application for non-compliance with a representation order is final or interlocutory:[2] As a preliminary matter, we disagree with the respondent’s submission that this court does not have jurisdiction over the appeal. The order dismissing Mr. Crowley’s application is a final order because it finally dismissed his application. The decision in Sennek v. Carleton Condominium Corporation No. 116, 2017 ONCA 154, at para. 15, which the respondents rely on, holds that a procedural order whose ultimate sanction for non-compliance is dismissal is an interlocutory order. It does not, as the respondents contend, stand for the proposition that an order dismissing a proceeding for failure to comply with an interlocutory order is itself an interlocutory order. Given that the motion judge’s order dismissing Mr. Crowley’s application is a final order, this court has jurisdiction to decide the appeal. . Ye v. Turton
In Ye v. Turton (Ont CA, 2025) the Ontario Court of Appeal considered the distinction between an interlocutory and a final order, here for appeal route purposes:[8] An order is interlocutory where it does not determine “the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right”: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC Lavalin Group Inc., 2020 ONCA 375, at para. 16; Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16; Heegsma v. Hamilton (City), 2024 ONCA 865, at para. 12.
[9] The application judge’s order is interlocutory. It is clear from the wording of the order, the application judge’s reasons, and the nature of the proceedings, that the order determines no substantive rights of the appellant. The appellant remains free to file a fresh application seeking the same relief as the first application. The only requirements are that he give notice to the property owner and that he provide additional evidence.
[10] The appellant relies on this court’s decision in Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.) in support of his contention that the application judge’s order is a final order because she dismissed the application.
[11] The appellant’s reliance on Buck Bros. is misplaced, both in terms of the legal proposition it stands for, and the facts in Buck Bros. that led to the conclusion that the order in that case was final.
[12] Buck Bros. involved an appeal from a motion judge’s order holding that the conditions in a joint venture agreement for a dispute about payment to be submitted for arbitration had been satisfied. Therefore, the dispute had to be resolved through arbitration, rather than through a court proceeding. This court held that the order in Buck Bros. was a final order because the order was a final determination of the matter in dispute before the court – namely, whether the conditions had been satisfied to submit the matter to arbitration rather than to the court. It did not matter that the underlying dispute about payment had not yet been resolved and would be resolved in the arbitration proceeding.
[13] In contrast, in this case, although the application was dismissed, the order made was without prejudice to the appellant’s right to bring a fresh application seeking the same relief, in the same forum, as the original application. As such, the application judge’s order had no impact on the matter in dispute in the application – whether either the appellant or the respondent are entitled to any portion of the surplus funds after the property was sold under power of sale. The application judge’s order determined no substantive right of the appellant in relation to his entitlement in that regard.
[14] Buck Bros. does not stand for the proposition that every time an order in relation to an application contains the words “the application is dismissed” it is a final order. While it will generally be the case that where an application is dismissed, the order will be final, it is not invariably so. Rather, as the jurisprudence of this court has repeatedly affirmed, to determine if an order is final or interlocutory, the appellate court must examine the terms of the order, the motion or application judge’s reasons, the nature of the proceedings giving rise to the order, and any other relevant contextual factors: Paulpillai Estate, at para. 16; Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, 142 O.R. (3d) 317, at para. 7; Beaver v. Hill, 2019 ONCA 520, at paras. 13-15.
[15] We note that the effect of the application judge’s order is the same as if she had chosen to adjourn the application sine die, and directed the appellant to give notice to the property owner and to supplement the evidentiary record on the application regarding the value of the third mortgage as of the closing date of the sale of the property. The fact that the application judge chose to dismiss the application without prejudice to the appellant’s right to bring a fresh application does not change the effect of her order – it determined no substantive rights of the appellant. We note, in particular, that nothing in the order of the application judge limited the substance of the claim the appellant may advance in the fresh application. . Baybourdi v. Starkman Barristers
In Baybourdi v. Starkman Barristers (Ont CA, 2024) the Ontario Court of Appeal quashed an appeal, here where the appellant lawyer was challenging "an order that the appellant’s accounts were to be assessed pursuant to the Solicitor’s Act". The court found such an order to be interlocutory, and properly brought before the Divisional Court:[1] The application judge made an order that the appellant’s accounts were to be assessed pursuant to the Solicitor’s Act, R.S.O. 1990, c. S.15. The appellant seeks to appeal that order to this court.
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[3] After considering the parties’ submissions, we have concluded that this court does not have jurisdiction over the proposed appeal because the order referring the accounts for assessment is interlocutory.
[4] The motion judge’s order does not finally determine the real issue between the parties. Rather, the issue of whether the contested accounts should be referred for assessment is a preliminary procedural matter. As this court observed in Durbin v. Brant, 2017 ONCA 463, at para. 6, which was also a proposed appeal from an order referring a solicitor’s accounts for assessment, “[t]he appellant has not been deprived of a substantive right because he is not precluded from defending the quantum of his account. That is the real matter at issue between the parties and it has yet to be determined.”
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[6] An appeal from an interlocutory order lies to the Divisional Court, with leave, pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. This court therefore does not have jurisdiction over this proposed appeal. . Canada One Family Network v. Cach Family Network
In Canada One Family Network v. Cach Family Network (Div Court, 2024) the Ontario Divisional Court considered whether the order under examination was final or interlocutory, an issue which here turned on whether a sought amendment was of a "substantive rights to relief (in the case of a plaintiff) or a substantive defence (in the case of a defendant)":[22] The applicable test on the issue before me is not in issue. In Sun Life Assurance Co. v. York Ridge Developments Ltd., 1998 CanLII 4519 (ON CA), the Court of Appeal held:Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), clarified the application of Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.) as to what is a final determination of the rights of the parties. As stated in Holmsted and Watson on Ontario Civil Procedure at 62-24: “Ball holds that what the Hendrikson 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).” An order granting or refusing an application for a stay of execution on a judgment does not determine any substantive rights between the parties.
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