In its November 17, 2015 decision, The Catalyst Capital Group Inc. v. Moyse, the Ontario Court of Appeal confirmed that an order dismissing a motion for contempt is interlocutory and may only be appealed to the Divisional Court, with leave, under s. 19(1)(b) of the Courts of Justice Act. The decision also provides guidance on the proper test for distinguishing between final and interlocutory orders.
Mr. Moyse was an employee of Catalyst Capital Group Inc (“Catalyst”). When he accepted a position with one of its competitors, Catalyst became concerned that Mr. Moyse had or would impart confidential information to his new employer.
As a result, Catalyst obtained a consent order requiring Mr. Moyse and his employer to preserve and maintain all records in their possession, power or control relating to Catalyst. Part of the order required Mr. Moyse to turn over his personal computer to counsel for forensic imaging of the data stored on it. Before doing so, however, Mr. Moyse deleted his personal browsing history and purchased software entitled “Secure Delete”, prompting Catalyst to bring a motion for contempt.
Following Mr. Moyse’s success on the contempt motion, Catalyst appealed the decision to the Ontario Court of Appeal. Mr. Moyse brought a motion to quash Catalyst’s appeal on the ground that the judgment was interlocutory and, therefore, fell within the jurisdiction of the Divisional Court.
The issue before the Court of Appeal was whether an order dismissing a motion for contempt is final or interlocutory. In support of their positions, the parties both relied on recent potentially inconsistent decisions from the Court of Appeal: Simmonds v. Simmonds, 2013 ONCA 479 which held that orders dismissing contempt motions are interlocutory and Sabourin and Sun Group of Companies v. Laiken, 2013 ONCA 530 which, while not directly addressing the issue, was an instance of the Court hearing an appeal from such an order.
After reviewing each case, Justice Lauwers observed that the Court’s decisions on the final/interlocutory distinction “have not been the model of clarity” and that “much ink has been spilled, and court and counsel time wasted in exploring the nuances” [of that distinction] (11). Ultimately, however, Justice Lauwers held that the root principle everyone can and does accept is found in Hendrickson v. Kallio,  O.R. 675:
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. It may be final in the sense that it determines the very question raised by the applications, but it is interlocutory if the merits of the case remain to be determined.
On that basis, because the merits of the case remained to be determined, there could be “no doubt” that an order dismissing a contempt motion is interlocutory.
In coming to this decision, Justice Lauwers also rejected Catalyst’s argument that the order is final because it effectively renders Mr. Moyse’s conduct in deleting his browser history res judicata such that it cannot be re-litigated, even in cross-examination. Rather, Justice Lauwers held that even though contempt issue cannot be re-litigated, barring some new revelation, all of the factual issues between the parties can be fully and exhaustively explored at discovery and at trial.
As a result, the order dismissing the contempt motion fell within the jurisdiction of the Divisional Court, and Catalyst’s appeal to the Court of Appeal was quashed.