The Court of Appeal for Saskatchewan recently ruled that a chambers decision was final, not interlocutory, where it referred a series of solicitors' bills for assessment to the local registrar after the expiry of the usual 30-day deadline. An appeal thus lay to the Court of Appeal without leave. As this was a case of first impression, it adds yet another entry to the ever-growing list of essential precedents addressing whether particular types of orders are final or interlocutory. In provinces where the final-interlocutory distinction continues to determine appellate jurisdiction or the appeal route, it is essential for appeal counsel to keep up to date on these developments.

The case

In Cowessess First Nation v. Phillips Legal Professional Corporation, 2018 SKCA 101, the client First Nation applied, after a change in leadership, to have 67 prior bills from its lawyer taxed. At issue was approximately $800,000 that had been invoiced for legal work over the course of approximately three years. The Chambers Judge allowed the application, with solicitor-client costs. The law firm appealed to the Court of Appeal—without seeking leave—and the client sought to quash the appeal on the basis that the order under appeal was interlocutory. The Court of Appeal disagreed, finding the order under appeal to be final, and therefore dismissed the application to quash.

Interlocutory versus final orders

Saskatchewan is one of the provinces which continues to peg the requirement for leave to appeal to the challenging distinction between final and interlocutory orders. No appeal lies to the Court of Appeal from interlocutory decisions of the Court of Queen’s Bench, unless leave to appeal is granted or the case falls into one of the narrow statutorily defined exceptions from the leave requirement (such as where the liberty of an individual is involved). See section 8 of The Court of Appeal Act, 2000. More on the distinction between final and interlocutory orders can be found in Sopinka and Gelowitz on the Conduct of an Appeal, Fourth Edition, Chapter 1, Part C. We address Saskatchewan’s distinctive approach of carving out defined exceptions from the leave requirement at §1.133.

Adding to the jurisprudence

As a case of first impression, Cowessess First Nation adds to our understanding of “final” orders. Prior to Cowessess First Nation, it had already been established that the disposition of an appeal from an assessment officer’s taxation of a solicitor’s bill is final. It had also been established that an order refusing an application to refer a solicitor’s bill to assessment is final. To these cases, Cowessess First Nation adds that an order granting an application to refer the bill to assessment, after the expiry of 30 days from the client’s receipt of the bill, is also final. Jackson J.A. held:

[18] In my view, it is not necessary to restate the Court’s definition of what constitutes a final order or to consider whether this Court would arrive at the same conclusions as the Ontario Court of Appeal in the above-mentioned cases [which are addressed in Sopinka and Gelowitz on the Conduct of an Appeal at pp. 18 to 33]. It is sufficient to apply [Saskatchewan Medical Association v. Anstead, 2016 SKCA 143], and ask this question: Does the Chambers Decision finally dispose of the rights of the parties?

[19] Applying this test, I have concluded that the order does dispose of the Law Firm’s right to contest the jurisdiction of the local registrar to assess the bill of fees for accounts rendered after the expiry of the 30-day period mentioned in s. 67(1)(a)(i). I reach this conclusion by considering the nature of the appeal structure, which, for all intents and purposes, renders much of what has been decided by the Chambers Decision final in nature. [emphasis in original]

Leave to appeal was thus not required under The Court of Appeal Act, 2000. Jackson J.A. went on to indicate that she would have, if necessary, granted leave to appeal nunc pro tunc. Although this jurisdiction is exercised only sparingly, Jackson J.A. was satisfied that this would have been a proper case to do so (had the order been interlocutory), including because counsel acted appropriately, there was no relevant delay, and there was no doubt that leave to appeal would have been granted had leave been necessary and sought.