Preliminary Factual Determinations Lead to Final Orders

Is an order that determines a preliminary factual matter relevant to a defendant’s liability final or interlocutory? Today’s Court of Appeal decision in Stoiantsis v. Spirou, 2008 ONCA 553 suggests it is final.

The Court writes:

[19] The test of whether an order is final or interlocutory is set forth in Hendrickson v. Kallio, [1932] O.R. 675 at 678 ( C.A. ):

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral.

[20] Hendrickson has been followed by many decisions dealing with the endlessly debated issue of what constitutes a final versus interlocutory order. A decision that is often cited is Ball v. Donais (1993), 13 O.R. (3d) 322 ( C.A. ). In Ball, the defendant moved under rule 21.01(1)(a) for a determination before trial of a question of law raised by the pleadings relating to the application of a limitation period provision. The motions court judge decided the question against the defendant. This court held that the judge’s order was final, reasoning at 324:

The effect of the order of Daudlin J. was to preclude the defendant’s entitlement to raise thereafter, as a defence to this action, the plaintiff’s failure to sue within the limitation period prescribed by the Highway Traffic Act. While that order did not finally dispose of the rights of the parties to the litigation, it did, subject to appeal therefrom, finally dispose of the issue raised by that defence, and thereby deprived the defendant of a substantive right which could be determinative of the entire action. [Emphasis added.]

[21] Ball extends the reasoning in Hendrickson and establishes that even where an order does not finally dispose of the rights of the parties to the litigation, it will be final for the purposes of appeal if it disposes of an issue raised by way of defence and “thereby deprive[s] the defendant of a substantive right which could be determinative of the entire action.”

[22] The question then is whether the order in issue deprives the defendants of a substantive right that could be determinative of the action.