In Brunning v. Fontaine, 2019 ONCA 98, the Court of Appeal for Ontario recently confirmed that a recusal order is an interlocutory order, meaning that the proper appeal route was to apply for leave to appeal to the Divisional Court. The Court of Appeal accordingly quashed the appeal. This adds yet another clear datapoint to help counsel and litigants determine the appropriate appeal route in civil matters. To paraphrase Lord Denning M.R., this is another case to add to the practice books to show what has been decided to be interlocutory. (See Sopinka and Gelowitz on the Conduct of an Appeal, Fourth Edition, in Chapter 1, at §1.17, for the full Lord Denning quotation.)
The responding party in the Court of Appeal, a lawyer, had requested the motion judge at first instance to recuse himself from the determination of costs, on the basis of some comments made in connection with a direction from the court. The motion judge dismissed the recusal motion (with reasons) and proceeded to determine the costs issue (ordering costs against the lawyer personally). The lawyer sought to appeal from both the recusal order and the costs order in the Court of Appeal.
The Attorney General moved to quash both appeals for lack of jurisdiction: the recusal appeal on the basis that it was interlocutory and therefore the appeal should have been commenced in the Divisional Court, and the costs appeal because the costs award was below the $50,000 monetary threshold of the Court of Appeal. As the latter is an arithmetical certainty, this post focuses on the Court of Appeal’s decision on whether a recusal order is final or interlocutory.
Whether recusal order is final or interlocutory
The Court of Appeal went back to the well for the distinction between final and interlocutory orders: that Court’s 1932 decision in Hendrickson v. Kallio. Hendrickson and the cases that followed are discussed extensively in Sopinka and Gelowitz on the Conduct of an Appeal, Fourth Edition, in Chapter 1, Part C. In essence, Middleton J.A. held in Hendrickson that an interlocutory order is one that “does not determine the real matter in dispute between the parties”, meaning that “the merits of the case remain to be determined”. This remains good law, although the application of this apparently simple test can be challenging in cases around the edges.
In Brunning, however, the Court of Appeal’s application of Hendrickson was straightforward. As the Court held, “the recusal order does not finally determine any substantive rights of the parties nor does it determine a substantive claim or defence in the matter before the court. It is thus an interlocutory order that may only be appealed to the Divisional Court, with leave.” The substantive issue in the litigation was not whether the motion judge had exhibited a reasonable apprehension of bias, but rather whether the lawyer ought to personally pay costs. However, the latter was subject to a separate appeal, and that appeal lay to the Divisional Court (with leave) because the amount at stake was less than $50,000 (as a result of ss. 19(1.2)(a) and 133(b) of the Courts of Justice Act).
As a result, the Court of Appeal quashed the appeal from the recusal order as being interlocutory.