On May 22, 2015, in Akagi v. Synergy Group (2000) Inc., the Ontario Court of Appeal considered the proper route for appealing ex parte orders and orders made in the receivership context. Three points applicable to general appellate practice in Ontario emerge from the decision:

  • First, the Court held that if orders that may be interlocutory end up being subsumed by later orders that are final, a joint appeal of the interlocutory and final orders will be brought to the Court of Appeal.
  • Second, an order finally determining receivership issues, leaving no action or further application in which any further rights will be determined, is likely to be considered a final order, with a right of appeal to the Court of Appeal.
  • Third, an appellant is not obliged to follow the route for setting aside ex parte orders if they were subsumed in a subsequent order, made with notice.

Background

The case emerged from what the Court described as a “saga”, with numerous trips to various levels of Court in Ontario. Eventually, the plaintiff obtained a judgment in an undefended trial. Less than two weeks later, the plaintiff brought an ex parte application before the Commercial List in Toronto, and obtained an Order appointing a receiver of the assets, property and undertakings of two respondents (the “Initial Order”). The receiver later obtained three further ex parte orders, expanding its powers (the “Subsequent Orders”). Affected parties then brought a motion to have the Initial Order and the Subsequent Orders set aside, but they were unsuccessful, leading to the “Come-Back Hearing Order”.

Reasons

On appeal, one of the respondents disputed the Court of Appeal’s jurisdiction to hear the appeal. For a unanimous Court, Justice Blair disagreed. His analysis read in pertinent part:

[52]      Counsel for Mr. Akagi advanced two arguments that he submits undermine this Court’s jurisdiction to hear the current appeal.

[53]      First, he argued that the orders under attack are interlocutory and therefore this Court does not have jurisdiction to deal with them. In the circumstances here, I disagree.

[54]      The Initial Order was obtained on application. No relief was claimed other than the appointment of a receiver. There was nothing more to be disposed of once that relief was granted. In the context of the proceedings, it was not intended to be interim or interlocutory in nature pending the outcome of a proceeding involving Mr. Akagi or anyone else.

[55]      Although Mr. Akagi’s counsel refers to the orders as “separate receivership orders”, the character of the Subsequent Orders is unclear because the Receiver did not file a notice of motion, notice of application or any formal record on any of the subsequent ex parteproceedings.

[56]      In any event, they are subsumed in the September 16, 2013 Come-Back Hearing Order, which is a final order. It finally disposes of the receivership issues between the parties to the Initial Order and between the Receiver and the numerous non-parties caught by the Subsequent Orders. There is no action or application in which any further rights will be determined. There will be no pleadings defining the issues and giving the appellants the opportunity to defend. This conclusion is consistent with decisions of this court, faced with similar circumstances, holding that a receivership order obtained by way of application is a final order from which an appeal lies directly to this Court […]

[57]      Secondly, counsel for Mr. Akagi argued that a direct appeal to this court from the Initial and Subsequent Orders is inappropriate because the Rules of Civil Procedure provide for the steps to be taken to set aside an ex parte order. Again, I disagree. This argument overlooks the fact that the come-back hearing effectively provided that very procedure.

On the merits, Justice Blair allowed the appeal and set aside all of the orders.