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Jurisdiction - Parties Can't Confer by Agreement. Rabbani v. Furney [security for costs]
In Rabbani v. Furney (Ont CA, 2026) the Ontario Court of Appeal quashed an appeal for want of jurisdiction, here where the order appealed from was interlocutory - and thus brought in the wrong court [it should have been brought in the Divisional Court under CJA s.19(1)(b)].
Here the court considers whether an issue of security for costs is interlocutory and final, and - more generally - the interpretation of orders and of the concept of jurisdiction:[3] We are satisfied that we have no jurisdiction to hear this appeal. This court has consistently held that orders requiring the posting of security for costs are interlocutory, not final: see e.g., Nazarinia Holdings Inc. v. 2049080 Ontario Inc., 2012 ONCA 652, at para. 2; Leslie v. Encanto Potash Trading Corporation, 2021 ONCA 464, at para. 6; Kapital Produce Limited v. Farm Credit Canada, 2026 ONCA 114, at para. 1.
[4] The Furneys argue that because they cannot afford to post the amount specified in the order under appeal, the order will bring the litigation to an end, making it “final in substance”. They emphasize that there are no ongoing proceedings in this matter in the court below. However, “the characterization of [an] order depends upon its legal nature, not its practical effect”: Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16. Orders requiring a litigant to post security for costs are interlocutory, not final, because they do 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.
[5] The Furneys also argue that this court has already “accepted jurisdiction” by receiving and filing their materials; that the respondent “never objected to this Court’s jurisdiction”, and never brought a motion to quash their appeal; and that they will be prejudiced if their appeal is not heard in this court.
[6] None of these considerations make a difference. As this court observed in J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, at para. 25:[J]urisdiction is fundamental to a court or tribunal’s authority to deal with a matter. Jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered: [7] In short, our finding that this court has no jurisdiction to hear appeals from orders of this nature means that the Furney’s appeal cannot proceed in this court. . 124020 Ontario Limited v. Hike Metal Products Limited
In 124020 Ontario Limited v. Hike Metal Products Limited (Ont CA, 2025) the Ontario Court of Appeal dismissed an appellate motion for appeal route directions, here as unnecessary and wasteful:[1] The moving party brought a motion for directions concerning the February 21, 2025 order of Justice Rady. It asks for directions regarding whether the order is final or interlocutory and the proper route of appeal. The moving party submitted that the order is final and that jurisdiction lies with this court. It has also filed a motion for leave to appeal in the Divisional Court, which has been stayed pending the determination of this motion. The responding parties filed a factum on this motion expressing their agreement that the order is final and the appeal lies to this court.
[2] After learning of the responding parties’ position, the Court inquired whether the moving party wished to proceed with the motion. All parties indicated they wanted to proceed and agree that the motion be heard in writing.
[3] Plainly, the parties cannot by their agreement confer jurisdiction on this court that does not otherwise exist. However, given that the parties do not contest jurisdiction, the appeal should be perfected and listed for hearing in the normal course. There is no need to bring a motion in advance for a positive finding as to jurisdiction for the appeal to be heard. Such motions result in a waste of limited judicial resources and create unnecessary delay in having appeals heard on their merits.
[4] Jurisdiction is ultimately a matter for the panel that hears the appeal. In the normal course, if any concerns about jurisdiction arise before the hearing of the appeal, the court’s legal officers may inform the parties to be prepared to make submissions at the hearing of the appeal. That has not happened in this case. Where jurisdiction is contested, the responding party may bring a motion to quash the appeal for lack of jurisdiction, which would be heard by a panel in advance of the hearing of the appeal. That has also not happened in this case. . Adelaide Metcalfe (Township) v. Strathroy-Caradoc (Municipality)
In Adelaide Metcalfe (Township) v. Strathroy-Caradoc (Municipality) (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here from a Divisional Court quashing order which "found that the Ontario Land Tribunal (the “Tribunal” or the “OLT”) erred in asserting jurisdiction over a dispute between" two municipalities.
Here the court comments on appeals of 'jurisdictional' issues:[13] .... Jurisdiction cannot be conferred by consent, nor by a party’s failure to raise the issue: J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, at paras. 24-25. ... . 1819472 Ontario Corp. v. John Barrett General Contractors Limited
In 1819472 Ontario Corp. v. John Barrett General Contractors Limited (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal which challenged the dismissal of the defendant's summary judgment motion on limitation grounds.
Here the court notes that parties cannot confer jurisdiction on a court by their agreement:[21] ... Parties, of course, cannot confer jurisdiction if a court does not have it: J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, at para. 25; 2650971 Ontario Inc. v. Shameti, 2022 ONCA 62, at para. 7. ...
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