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Stare Decisis - Interlocutory Orders. Scharf v. Crowder
In Scharf v. Crowder (Ont CA, 2026) the Ontario Court of Appeal considered the frequent situation where courts are required to assess 'merits on appeal' as part of the test in such motions as 'time extension to commence', 'stay pending appeal', and the ubiquitous RJR-Macdonald interlocutory injunction test. The court clarifies that such findings are not findings wrt the full "merits of an appeal" - nor are they decisions "on how they themselves would resolve the appeal" - and thus (I infer) they have no stare decisis precedent value. They are in fact separate and distinct rulings that the appeal was "so lacking in merit that there was no realistic prospect that any judge could allow the appeal":[3] In this panel motion, Mr. Crowder seeks to have the motion judge’s decision set aside, claiming that she committed legal errors and misapprehended material evidence. Specifically, he appears to argue that contrary to her self-direction she committed a legal error by ruling on the merits of his proposed appeal and did so based on an incomplete record that had been corrupted by the responding party’s counsel’s incomplete and selective filing of documentation at trial. ....
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[6] First, the motion judge did not overreach her role by ruling on the merits of the proposed appeal. A judge rules on the merits of an appeal when they base their decision on how they themselves would resolve the appeal. The motion judge did not do that. Instead, she determined, in substance, that the appeal was so lacking in merit that there was no realistic prospect that any judge could allow the appeal. In other words, that it was “so lacking in merit that the important right to appeal should be denied”. That decision was an appropriate determination by the motion judge relevant to whether it was in the interests of justice to grant the extension and entertain the appeal: Issai v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 10; Kideckel v. Kideckel, 2025 ONCA 787, at para. 20. In this regard, there is no point in permitting the late filing of an appeal that has no realistic prospect of succeeding. This is particularly true where family litigation has been protracted and acrimonious, as in the case before us. . Angel Capital Finance Inc. v. Jawaid
In Angel Capital Finance Inc. v. Jawaid (Ont CA, 2024) the Divisional Court considered the definition of an interlocutory judgment, and that it is not binding on the trial court:[2] .... Such an order is interlocutory because it does not determine the rights of the parties, but only the procedure by which those rights will be determined: Roblin v. Drake, 1938 CanLII 54 (ON CA), [1938] O.R. 711 (C.A.). The reasons of Fowler Byrne J. that explained why the default judgment was set aside were not binding on the trial judge: Simmonds v. Simmonds, 2013 ONCA 479, 117 O.R. (3d) 479.
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