In Enerzone Inc. v. Ontario (Revenue), the Ontario Court of Appeal quashed the Minister’s appeal on the basis that the motion judge’s order was interlocutory. The Minister had brought a motion in the Superior Court to dismiss Enerzone’s tax appeal on the grounds that the appeal was outside the scope of appeals allowed under the Retail Sales Tax Act, R.S.O. 1990. The motion judge dismissed the Minister’s motion and the Minister appealed.

The key question for the Court of Appeal was whether the motion judge’s order dismissing the Minister’s motion was final or interlocutory. The Court noted that if the motion judge had decided the scope of the appeal by precluding the Minister from raising arguments as to the scope on the appeal itself, the order would be final. However, if the motion judge simply determined that the proper scope of the appeal was a matter to be argued and determined on the appeal itself, the order would be interlocutory.

The Court determined the order was interlocutory and quashed the appeal. The motion judge’s order merely dismissed the motion. It did not “purport to decide anything about the scope of the appeal”. While the reasons were somewhat ambiguous, read in their entirety together with the terms of the order itself, it was clear that the order did not preclude the Minister from raising arguments as to the scope of the appeal at the appeal itself. Therefore, the appeal was interlocutory and the Court of Appeal had no jurisdiction.

The Court also observed that the determination of whether an order is interlocutory or final is an “ongoing problem for this court.” To alleviate the problem, the Court urged motion judges to use language that clearly states whether or not the order disposes of a substantive issue and urged counsel to pay close attention to the language of an order.