June 27, 2022

Why does it Matter?

Determining whether an order is final or interlocutory is important for litigators considering the proper avenue of appeal. In Ontario, appellate jurisdiction is distributed to two courts. A final order of a Superior Court Justice is appealable to the Court of Appeal as of right, and an interlocutory order is appealable to a panel at the Divisional Court with leave.

In Ontario, this distinction was created since the establishment of the Divisional Court in 1972. The policy consideration behind this distinction has always been proportionality. As stated by Justice Sopinka in The Conduct of An Appeal, “The distinction provides the court with the means of balancing the competing principles of the public interest in resolving disputes in achieving finality, and the right of individuals to have timely review of decisions which affect them”.

In other words, judicial resources are limited, and the combination of the distinction between final and interlocutory order, as well as the leave requirement, allows judges to make most efficient use of those resources.

What is the Test?

In practice, it is very difficult to distinguish between a final and interlocutory order. In Ontario, the test is set out in the leading case of Hendrickson v. Kallio. As that case sets out: an interlocutory order is one which does not finally determine the parties’ rights with respect to the actual subject matter of the litigation. Essentially, this test can be broken down into three components.

First, it is important to understand the central issue of the litigation at hand. Any litigation can have a variety of corollary issues. For example, an order regarding the discharge of a Certificate of Pending Litigation on a property, in the context of an application regarding the validity of a will, is not a final order. However, the same order in the context of a real property dispute, may be a final one.

Secondly, consider whether the order does finally determine the parties’ rights regarding the heart of the litigation. As stated in Ontario Medical Assn v. Miller, this determination is a legal and not a practical one. In that case, the Court of Appeal stated that even if the practical effect of an order in question, for example, one which dismisses a motion for an interlocutory injunction, may well put an end to the litigation practically, this was not a relevant consideration.

Conversely, if the legal effect of the order satisfies the test for finality, even if an order still practically allows the proceedings to continue, it is still a final order.

Thirdly, there is an exception to the above. Even if an order does not finally determine the parties’ rights regarding the central issue, it can still be considered final if that order determines some procedural right of the parties. In Frederick v. Aviation & General Insurance Co., the Court of Appeal referred to a defendant’s right to add a non-party to the action as part of their substantive right to make a full answer and defence to the plaintiff’s claim. Accordingly, an order setting aside a previous order adding the non-party was considered final and not interlocutory.

How This Distinction Impacts Parties in Estate Litigation

As is the case with any type of litigation, appeals are often a live consideration when receiving an unfavourable result. Practically, where an order is final and there is a right of appeal, there will be no additional time and resources spent on a battle regarding leave to appeal.

However, it is important to bear in mind that the distinction between a final and interlocutory order is one of many key considerations. It takes a wholistic consideration of other factors such as the applicable standard of review, and the test for granting leave from an interlocutory order, to make a sound decision and craft a strong strategy in moving forward.