Final Orders, Still no Finality

 1819472 Ontario Corp. v. John Barrett General Contractors Limited, 2024 ONCA 333

[24]      It is uncontroversial that where a defendant brings a successful motion for summary judgment on the basis that the action is statute-barred due to having been commenced out of time, the resulting order is final, and an appeal lies to this court. Matters are more complicated where the motion is instead dismissed.

For those just joining us, the Courts of Justice Act says that an appeal from a "final order" of the SCJ goes to the ONCA (otherwise the appeal generally lies to the Divisional Court). Unfortunately, the CJA does not define a "final order."

If a summary judgment motion is dismissed, then the case continues to trial -- which seems like the opposite of a final order, since nothing has been determined.

However, a judge hearing a summary judgment motion has more options than just granting or dismissing it. Rule 20.04(4) has been interpreted to mean that a judge can decide a "question of law" raised on the motion, and Rule 20.05 says that if any part of a claim survives a motion for summary judgement "the court may make an order specifying what material facts are not in dispute and defining the issues to be tried."

Earlier ONCA decisions held that where a motion judge explicitly invoked those rules to make a finding of fact, or determine a legal issue, that aspect of the order is final (and therefore appealable to the ONCA). Otherwise, the reasoning of the motion judge is not binding on the (future) trial judge, and the order is interlocutory.

In this case, the motion judge did not explicitly invoke those rules. The order was still treated as a final order.

Why?

[26]      As a matter of best practice, a motion judge who intends to make a final determination on a question of fact or law ought to state the rule under which the determination has been made in the order issued: Skunk, at para. 36. And although a failure to make such a statement in the order suggests that no such determination or finding was made, this failure is not determinative: in some cases, to determine what has been decided, it is necessary to look at the reasons: Vanden Bussche, at para. 10; Walchuk Estate v. Houghton, 2015 ONCA 862, at para. 14, citing Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.); Abbott v. Collins (2002), 2002 CanLII 41457 (ON CA), 62 O.R. (3d) 99 (C.A.); and Ashak, at para. 17. This is one of those cases. (emphasis added)

This relates to a common issue in appellate practice: the order is the actual subject of the appeal, not the judge's reasons in support of that order.

In this case, the ONCA essentially said 'while the order makes no mention of these specific Rules and the powers they grant, it is obvious that the judge and the parties all agreed that the motion was meant to finally determine the limitations question, QED it is a final order':

[29]      There was only one issue argued on the summary judgment motion – whether the action had been commenced within two years of the plaintiff gaining knowledge of the facts giving rise to the cause of action. None of the material facts were in dispute. Losing the motion would necessarily mean that the appellants would thereafter be disentitled to raise the defence at trial, unless the reason that the motion was dismissed was because the motion judge determined it was an issue that required a trial to decide.

The ONCA's decision is undoubtedly practical. The appeal had already been fully briefed and argued, there were no disputed facts, and it was a straightforward appeal. Kicking it to the Divisional Court to start over would have been a waste of resources when the system has none to spare.

At the same time, every decision that blurs the line between final and interlocutory orders, or which suggests that the "real" order is to be found in the reasons, is an invitation to appellants (or their counsel) to either behave badly, or at the very least press their luck.

This decision will be cited by counsel looking to bring otherwise interlocutory appeals to the ONCA. They will argue that, despite what the order says, the judge really meant the decision to be final. Sometimes, they might even be right.

As a counterfactual, what if the ONCA drew a firm line and said: 'Sorry, unless the order explicitly references these provisions, it's an interlocutory order'?

Given that most orders are drafted by counsel (and if they are not, counsel are typically given the opportunity to comment before they are signed), I have no doubt that litigators would make sure that orders meant to be final will say so clearly.

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