Sometimes, a seemingly interlocutory order will necessitate that a judge interpret a statute in a way that may seem “final”. Does an appeal in Ontario in such circumstances lie to the Divisional Court or the Court of Appeal? In Dams v. TD Homes and Auto Insurance Company, the Court of Appeal held that these orders will generally be appealable to the Divisional Court unless the order “contain[s] any finding of law that the parties and the motion judge intended would be final”. The Court held in full:
- The appellant appeals from an order that dismisses the motion for summary judgment. That order is an interlocutory order that can only be appealed to the Divisional Court with leave.
- The appellant seeks to appeal to this court based on what it says is a finding by the motion judge as part of the reasons regarding the interpretation of some statutory provisions, which finding it says is a final order. He relies on this court’s decision in Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.).
- This court recently made an important ruling interpreting and clarifying the decision in Ball v. Donais in the case of Ashak v. Ontario (2013) ONCA 375. That case clarifies that in most instances as the appeal is from the order and not the reasons, the order must contain any finding of law that the parties and the motion judge intended would be final, in order to give this court jurisdiction to hear an appeal. A corollary is that if the finding below is not final, it has not been finally determined in the action, and if not appealed with leave, it remains an open question for trial. [emphasis added]
- In this case the motion judge concluded for the purposes of the motion that the legislation allowed him to grant relief from forfeiture and that in all the circumstances, it was “a fit case in which to grant relief from forfeiture”. Whether he was actually granting relief or just not granting summary judgment is not totally clear.
- In our view the order is not final and is not appealable to this court. The motion is therefore dismissed on that basis. Costs in the amount of $9,950.00 to the respondents.