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Interlocutory Appeals from Judges [CJA 19(1)(b)]. Yurkovich v. Citibank Canada [amending pleadings]
In Yurkovich v. Citibank Canada (Ont CA, 2023) the Court of Appeal considered (and granted) a motion to quash an appeal as it was brought in the wrong court. The issue was whether the underlying order was 'interlocutory' (appeal to the Divisional Court) or 'final' (appeal to the Court of Appeal):[2] The motion judge’s order granting the respondents leave to amend their statement of claim is an interlocutory order: Natario v. Rodriguez, 2015 ONCA 227, at para. 7; Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404, 131 O.R. (3d) 455, at para. 28.
[3] In assessing whether there would be non-compensable prejudice to the appellants if leave to amend were granted, the motion judge considered whether the proposed amendments constituted a new cause of action or were elaborations of the original claims already pleaded: Boyer v. Callidus Capital Corporation, 2023 ONCA 233, at paras. 66-68. The fact that the motion judge considered whether the amendments constituted a new cause of action in her analysis does not transform her order granting leave to amend the statement of claim into a final ruling on the appellants’ limitation period defences: Natario, at paras. 3-6; Fram Elgin Mills, at paras. 18, 20, 25 and 36-39. The reasons and order of the motion judge are clear that the parties retain the right to assert arguments at trial in relation to the Limitations Act, 2002, S.O. 2002, c. 24.
[4] As the order is interlocutory, the appeal 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. . 2602203 Ontario Inc. v. Bijan Design Inc.
In 2602203 Ontario Inc. v. Bijan Design Inc. (Ont CA, 2023) the Court of Appeal reviews the basic procedure to evict a commercial tenant, and an unusual appeal route variation that occurs:[12] Part III of the Commercial Tenancies Act sets out the procedure a landlord is to follow to obtain a writ of possession against a tenant who is no longer entitled to occupy a rental property. Pursuant to s. 74(1) of the Act, landlords seeking this relief are to bring an application for a writ of possession to the Superior Court. In accordance with s. 76(2) of the Act, a judge hearing the application has the power to grant a writ of possession “if it appears to the judge that the tenant wrongfully holds against the right of the landlord”. As set out in s. 78(1) of the Act, an appeal lies to the Divisional Court “from the order of the judge granting or refusing a writ of possession.”
[13] On its face, it appears that s. 78(1) of the Commercial Tenancies Act requires an appeal from the motion judge’s order in this case to be brought to the Divisional Court because she refused to grant a writ of possession.
[14] However, as the appellant points out, the order made by the motion judge did not follow from an application brought pursuant to s. 74(1) of the Act. The motion judge’s order is not an order refusing a writ of possession arising from an application brought under Part III of the Commercial Tenancies Act. Rather, it was based on the order of McKelvey J., who made an order that the appellant was permitted to bring a motion to terminate the tenancy if the respondents did not pay rent owing pending the trial. On this basis, we agree with the appellant that s. 78(1) of the Commercial Tenancies Act does not appear to apply to this appeal.
[15] However, this does not assist the appellant. We agree with the submission made by counsel for the respondents at the hearing before us that the motion judge’s order is not a final order, but rather an interlocutory order. Pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the Divisional Court, not this court, has jurisdiction over an appeal from an interlocutory order made by a judge of the Superior Court. Such an appeal requires leave of the Divisional Court. Earlier, the 'executive legal officer' of the Court had suggested that the CA lacked jurisdiction due to CLTA s.78(1) ["An appeal lies to the Divisional Court from the order of the judge granting or refusing a writ of possession."], but the court followed the 'interlocutory' route instead and transferred the appeal to the Divisional Court where the appellant could seek leave to appeal.
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