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Appeal - Final v Interlocutory Orders - General. O’Brien v. Bell
In O’Brien v. Bell (Div Court, 2023) the Divisional Court makes the straightforward (but useful) point that orders may contain both final and interlocutory aspects, and that it is what is appealed that governs the final versus interlocutory issue:[8] In the face of this line of authority the respondent argues that since some of the terms of the order are interlocutory, leave is required. This is no answer to the line of authority described above. An order may contain aspects that are final and aspects that are interlocutory. Appeal rights are determined by examining the issue on appeal. In this case, the issue on appeal is the order for sale, which is a final order under the Partition Act. Leave to appeal is not required. . Shiewitz v. Shiewitz
In Shiewitz v. Shiewitz (Div Court, 2023) the Divisional Court considered an important point about determining whether an order is final or interlocutory - that is, that the issue is determined by the nature of the order under review, not the consequences that may flow from it being violated:[10] Where an order includes a condition that if a thing is not done within a certain time a party’s pleading or action will be struck, and the pleading is then struck, whether the order is a final or interlocutory order for appeal purposes is determined not by the fact the pleading is struck. It is determined instead by the nature of the order, the failure to follow which results in the pleading being struck.
[11] In J.K. v. Ontario, 2017 ONCA 332, the order appealed from provided that the action would be stayed unless the plaintiff produced certain records. In finding that the order was interlocutory, the Court characterized the order as a production order with a sanction in the event of non-compliance. It emphasized that, as stated in, Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404, “the nature of the underlying motion is an important consideration in deciding whether an order is final or interlocutory.”
[12] In Benarroch v. Abitbol, 2018 ONCA 203, the Court of Appeal applied the same reasoning in the family law context to an order stating that if the husband failed to comply with the provision requiring him to make certain payments, including spousal and child support payments, the wife was entitled to move to strike his pleadings involving the financial issues. Applying the reasoning from J.K., the Court stated that “a term…directed at the consequence of non-compliance with the order, cannot alter the nature of the order.”
[13] Here, Kristjanson J.’s order was that the Appellant was to pay the total of the outstanding costs awards within a specific time, failing which his Notice of Motion to Change would be dismissed. Further, she ordered that he could not take any further steps until the cost orders were paid.
[14] Kristjanson J.’s order is interlocutory for two reasons. First, it arose from a Case Conference, not a trial or other event which finally determined issues between the parties. Second, the order itself did not finally determine issues between the parties. The Motion to Change would have continued had the cost orders been paid. In other words, the crux of the order was the requirement to pay costs. The striking of the pleadings was consequence of non-compliance with the order.
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