Is that Order Final or Interlocutory?

January 15, 2022

By Brian Babcock

You might look at this title and start by wondering “what does ‘interlocutory’ mean?”

Good question, one that a lot of lawyers and judges still struggle with.

Also an important question if you want to appeal a Superior Court order or judgment. Because the correct appeal route – that is, which court you appeal to, and the time limits and process involved – may depend upon whether or not the order is final or interlocutory.

That is because final orders are more serious, and using the limited resources of the Court of Appeal to decide less serious issues would defeat the purpose of having an intermediate appeal level.

However, if you appeal to the wrong court, it increases your cost, and there is even a risk that you might not get the time extended to appeal to the correct court.

So you might think that 154 years after Confederation, and 36 years since the Rules of Civil Procedure were totally rethought, the answer would be clear. Not so. This is illustrated by the September 21, 2021 decision in the Ontario Court of Appeal in Johnson v. Ontario.

In that case, a motion judge had refused to extend the time for a former inmate to opt out of a class action related to his treatment in prison. The Plaintiff appealed to the Court of Appeal. The Crown brought a motion to quash the appeal for being to the wrong court, saying that the order from the motion was interlocutory, and thus, had to be appealed to Divisional Court.

The Court notes that a 2020 decision defined an interlocutory order as “one which does not determine the real matter in dispute between the parties — the very subject matter of the litigation — or any substantive right to relief of a plaintiff or substantive right of a defendant.”

Ontario argued in this case that the opt-out provision of the Class Proceedings Act is entirely procedural and does not finally determine any rights – it merely requires each claimant to chose how they want their rights decided.

However, in earlier cases, the Court of Appeal had recognized the importance of the opt-out process – the ability to preserve your right to proceed outside the class action is a fundamental question of jurisdiction. In the case under appeal, for example, the Plaintiff was likely to recover higher damages if he proceeded outside the class action, which was focused on relatively minor injuries.

In another series of cases, the court has held that an order that determines the forum in which a dispute (court versus arbitration) is decided is generally a final order, because it ends the proceeding in which the order is made.

Add those two lines of cases together, and the appeal in this case is in the correct place – the Plaintiff’s substantive right to control his claim, and potentially recover higher damages, was removed by the order. Ontario’s motion was dismissed.

This case is just one of many that illustrate the subtle distinctions that must be made in the course of a law suit. Even in Thunder Bay or elsewhere, you may find the sort of lawyer who enjoys the analysis necessary to advise you about procedure. At Weilers Law, we have those sort of lawyers.