Tuesday, June 26, 2012

Final and interlocutory orders

Alfano v. Piersanti, 2012 ONCA 442 is a good current example of the principle that where a decision disposes finally of a material issue the decision gives rise to a final order. It is often hard to decide when an issue is finally decided and the distinction between final and interlocutory is confusing. Capital Forms Income Steams Corp. v. Merrill Lynch Canada Inc., [2007] O.J. No. 2606 is a good example of this. In dissent, Laskin J.A. concluded that an order appealed from was final. In his dissenting reasons he advanced the final/interlocutory order distinction. He wrote at para. 36:

The distinction between final and interlocutory orders bedevils this court. Far too much ink has been spilled over the pages of the Ontario Reports, grappling with this distinction. Even when the parties themselves do not raise the issue, the court itself often feels compelled to do so - as it did in this case - because the court's jurisdiction to hear an appeal turns on the distinction: final orders are appealable as of right to this court; interlocutory orders are not.

And yet, despite the very large number of decisions on whether a particular order is final or interlocutory, our court's jurisprudence on the distinction has been anything but a model of consistency .... The litigation bar - even the experienced members of that bar - cannot always fathom whether an order is final or not. There is no better example than this case.

In Alfano v. Piersanti the Court writes:

[9] The appellants maintain that Cumming J.'s order does in fact finally determine a substantive issue. They point out that Cumming J. dismissed not only their motion to set aside Newbould J.'s order but also their motion to strike the entire action. In so doing, Cumming J. rejected the appellants' claim that the action, in its entirety, was outside of the jurisdiction of the Superior Court.

[10] As a result of Cumming J.'s decision, the appellants will no longer be able to raise this jurisdictional issue as a defence to the action when the matter ultimately goes to trial. As set out in Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), at para. 3, the effect of Cumming J.'s order is to "finally dispose of the issue raised by that defence, and thereby depriv[e] the defendant of a substantive right which could be determinative of the entire action".

[11] This court has on prior occasions found that, in cases where an order dismisses a motion that challenged the court's jurisdiction pursuant to rule 21.01(3)(a), such orders are final provided that the motion judge clearly dealt with the merits of that issue and dismissed the motion: see Abbott et al. v. Collins et al. (2002), 62 O.R. (3d) 99 (C.A.), at paras. 6-8; and also Manos Foods International Inc. v. Coca Cola Ltd. (1999), 180 D.L.R. (4th) 309 (Ont. C.A.), at paras. 1-5.

[12] Accordingly, we are of the view that the appellants' appeal from the order of Cumming J. dismissing their motion to strike the statement of claim is an appeal from a final order and is properly before this court.

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