|
Open Court - Sealing Orders (3). A. v. B. [sealing orders/interlocutory v final]
In A. v. B. (Ont CA, 2025) the Ontario Court of Appeal granted a motion to quash a family law appeal, here from a motion order "declining to seal or otherwise restrict public access to the record or decisions in the Superior Court proceeding".
The court usefully considers the distinction between interlocutory and final orders, here in a sealing order context:Interlocutory and Final Orders
[16] Section 6(1) of the Courts of Justice Act provides that appeals from final orders of the Superior Court lie to this court, while s. 19(1)(b) provides that appeals of interlocutory orders lie, with leave, to the Divisional Court.
[17] In Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16, leave to appeal refused, [2021] S.C.C.A. No. 373, Jamal J.A. (as he then was) articulated the main principles for determining whether an order is final or interlocutory:1. An appeal lies from the court’s order, not from the reasons given for making the order.
2. An interlocutory order “does not determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right. Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided.”
3. In determining whether an order is final or interlocutory, “one must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order.”
4. The question of access to appellate review “must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case.” In other words, the characterization of the order depends upon its legal nature, not its practical effect. [Citations omitted.] [18] An order is interlocutory if the merits of the case remain to be determined: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678; Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 1998 CanLII 4519 (ON CA), 116 O.A.C. 103 (C.A.), at para 13. Conversely, final orders determine “the very subject matter of the litigation – or any substantive right to relief” (Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16); address the “substantive merits” (Sun Life, at para. 13); or finally dispose of an issue raised by the defence depriving the defendant of a right that could be determinative of the entire action (Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), at p. 324).
[19] This court has held that “sealing orders are normally interlocutory as concerns the parties to the litigation”: P1 v. XYZ School, 2021 ONCA 901, 160 O.R. (3d) 445, at para. 23. Similarly, an order refusing to grant a sealing order at the request of a party is treated as interlocutory: Paulpillai Estate, at para. 38. Thus, in Aquino v. Aquino, 2022 ONCA 541, where a sealing order had been obtained without notice to the media but was then set aside, this court quashed an appeal by a party from the setting aside of the sealing order, stating, “[t]he order setting aside the sealing order does not determine the subject matter in the dispute in the litigation. The privacy rights asserted by Mr. Aquino are collateral to the main action”: at para. 11. Similarly, in S.E.C. v. M.P., 2022 ONCA 905, this court confirmed that orders granting or refusing sealing orders (as they pertain to the parties) are interlocutory, distinguishing the sealing order in that case because it was part of a final disposition of a proceeding: at para. 2.
[20] The situation is different when a sealing order is granted and a media organization, who opposed it being granted but is otherwise a stranger to the litigation, seeks to appeal. That is because when a non-party’s substantive rights are finally determined, an order may be considered final as against them, even if considered interlocutory as against the parties: XYZ School, at para. 23. In XYZ School, the order under appeal determined the constitutional rights of the media and was therefore final in relation to the media, but not as it concerned the parties. At para. 19 of that case, Benotto J.A. set out the following guiding principles:1) A final order must deal with substantive rights.
2) All orders directed to non-parties are not necessarily final.
3) To be final, an order directed to non-parties must determine non-parties’ substantive rights. [21] In keeping with the principles set out in Paulpillai, it is the legal nature of the order, not its practical effect, which drives the analysis. In J.M. v. B.S., 2024 ONCA 727, this court recognized that even where the effects of an order may be irreversible, the order may nevertheless be interlocutory. In that case, the mother argued that an order requiring the child to be vaccinated was final on the basis that it could not be undone. This court disagreed, stating at para. 11: “[m]any interim or interlocutory decisions give parties the ability to do things that cannot be undone, but this does not make the order final.”
|
