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Ontario's current system of appeal routes is complicated. Three courts – the Court of Appeal, the Divisional Court and the Superior Court of Justice – have appellate jurisdiction in civil matters. Appeal routes differ depending on the court appealed from, the monetary amount at issue and whether the order appealed from is final or interlocutory.

In the mid- to late1990s, the unacceptable backlog in the Court of Appeal for Ontario was brought under control. For all practical purposes, it currently has no civil appeal backlog, except in those cases where there are trial transcript problems. (The latter may be an unintended consequence of the court's initiative to expedite transcript preparation in criminal proceedings.)

The Divisional Court, part of the Superior Court of Justice, exercises a substantial appellate jurisdiction in addition to its judicial review jurisdiction. Although Divisional Court resources are stretched, delay is not a pressing problem. I note, however, that when the Divisional Court appellate jurisdiction increases from $25,000 to $50,000 on October 1, 2007, the Divisional Court will inherit more appellate work. Inevitably, this will put more pressure on the Superior Court of Justice, particularly in Toronto, since more judges or more judge time will have to be committed to the Divisional Court at the expense of other Superior Court business.

As far back as I can recall, there has been a debate about what the Divisional Court should be doing and whether the generalist Superior Court (which provides the Divisional Court judges) should adjust so that judges with expertise in administrative law and judicial review preside in the Divisional Court. The debate includes the role of the Divisional Court. A frequently asked question is whether there should be more emphasis on the Divisional Court's judicial review jurisdiction and less on its appellate jurisdiction. Less frequently asked is whether there may be another way to deal with judicial review applications (the principal area of concern expressed about the Divisional Court), leaving the Divisional Court as an intermediate appellate court. This Review did not directly deal with these issues. This is something that the Law Commission of Ontario might consider addressing.

Where an appeal goes, as matters now stand, requires consideration of the unfascinating distinction between a final and interlocutory order. If the order is final, the appeal from it is to the Court of Appeal. If the order is interlocutory, the appeal is to the Divisional Court. That would present no problem if it were relatively easy to determine whether an order is final or interlocutory.

The most recent and, I think, useful example of the final/interlocutory order problem is found in Capital Forms Income Steams Corp. v. Merrill Lynch Canada Inc., [2007] O.J. No. 2606. In that case, the entire 23-page judgment considered one issue – whether the order appealed from was final or interlocutory. The appeal was argued by two experienced counsel who both thought that the order in issue was final. In the end, after reserving judgment, the majority (Doherty and Jurianz JJ.A.) held that the order appealed from was interlocutory and that the appeal must therefore be quashed since the Court of Appeal had no jurisdiction to hear appeals from interlocutory orders. In dissent, Laskin J.A. disagreed. He concluded that the order appealed from was final. In his dissenting reasons he advanced the final/interlocutory order distinction. He wrote at para. 36:

The distinction between final and interlocutory orders bedevils this court. Far too much ink has been spilled over the pages of the Ontario Reports, grappling with this distinction. Even when the parties themselves do not raise the issue, the court itself often feels compelled to do so – as it did in this case – because the court's jurisdiction to hear an appeal turns on the distinction: final orders are appealable as of right to this court; interlocutory orders are not.

And yet, despite the very large number of decisions on whether a particular order is final or interlocutory, our court's jurisprudence on the distinction has been anything but a model of consistency …. The litigation bar – even the experienced members of that bar – cannot always fathom whether an order is final or not. There is no better example than this case. [footnote omitted]

I agree with Laskin J.A. that too much ink has been spilled over this issue. Would it not be better to confer jurisdiction on the Court of Appeal if the order appealed from finally disposes the action or application? If it does not, that is if the action will continue notwithstanding the order, the appeal is to the Divisional Court, in my view, with leave. The Civil Rules Committee should review this core issue and in the end, I hope, make a recommendation to the Attorney General for a legislative amendment to the Courts of Justice Act that would jettison the final/interlocutory distinction.

There are two other appeal-related issues that I think should be considered. The first concerns dismissed summary judgment motions and the second concerns appeals from certain awards in arbitrations.

Consultations revealed considerable support for singling out summary judgment orders by having appeals from those orders go to the Court of Appeal whether or not summary judgment is granted or dismissed. Currently, the appeal from a dismissed summary judgment motion is to the Divisional Court, with leave, while the appeal from a granted summary judgment order is to the Court of Appeal. The policy rationale for this distinction finds its home in the rationale for the distinction between interlocutory and final order.

There was also considerable support for having appeals from arbitration awards of more than $50,000 go to the Court of Appeal. This would establish a parallel process with s. 19 of the Courts of Justice Act, which provides the Court of Appeal with jurisdiction to hear appeals from trial judgments over $50,000 (as of October 1, 2007).

Recommendations (Appeals)

  • The Law Commission of Ontario should undertake a review of the role of the Divisional Court as a court of intermediate appellate jurisdiction and make recommendations regarding the court's future role and jurisdiction. This review should consider both the judicial review and appellate jurisdiction of the Divisional Court.
  • The Civil Rules Committee should consider and recommend to the Attorney General changes to the Courts of Justice Act so that only orders finally disposing of an action/application would be appealable to the Court of Appeal. Appeals from all other orders would be to the Divisional Court. The Civil Rules Committee can best determine if leave should be required and, if so, on what basis leave would be granted.
  • Appeals from summary judgment orders issued under rule 20 should be to the Court of Appeal if the amount in issue is otherwise within the jurisdiction of the Court of Appeal.
  • Appeals from awards through the Arbitration Act should be to the Court of Appeal if the amount involved (more than $50,000) brings the award within the monetary jurisdiction of the Court of Appeal.