Appeal quashed from “without prejudice” dismissal of motion for non-party production

In Quenneville v. Robert Bosch GMBH, 2019 ONCA 235, the Court of Appeal for Ontario recently weighed back into the final-interlocutory debate in the context of orders affecting non-parties. Quenneville dealt with an appeal from an order dismissing a motion for production from a non-party. The Court of Appeal quashed the appeal on the basis that the order was interlocutory (not final), and thus no appeal lay in the Court of Appeal. The motion judge had been clear that the order dismissing the production motion was “without prejudice” to the plaintiffs bringing the motion back later. As the Court of Appeal held, such an order does not finally dispose of any issues, and is thus interlocutory.

Determining the appeal route from an order affecting non-parties raises special challenges. As discussed in Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition, §§1.68-1.74, there was a line of cases that applied an expansive view of when such non-party orders were final and thus appealable to the Court of Appeal. More recent cases, such as Houle v. St. Jude Medical Inc., 2018 ONCA 88, have commented that the expansive view of finality was difficult to reconcile with the principles that govern the distinction between final and interlocutory orders generally. When addressing whether a non-party order is final or interlocutory, it is essential to consider the more recent body of cases, including Houle and Ambrose v. Zuppardi, 2013 ONCA 768. As held in Ambrose, it is relevant to consider the motion judge’s reasons to determine whether the non-party order is final or interlocutory. If the door was left open, it is unlikely for the order to be final.

Back to Quenneville, the Court of Appeal relied on Ambrose and the motion judge’s reasons for the non-party order. Specifically, the Court of Appeal relied on paragraphs 52 and 53 of the motion judge’s reasons, which were clear that the plaintiffs’ motion was premature and the non-party order was “without prejudice” to the plaintiffs seeking the same relief at a later point in the proceedings:

52     […] [A]t this juncture of the Bosch Action: (a) it has not yet been determined what documents within the three million documents are materially relevant to the Bosch Action; (b) it is not yet determinable whether production now as opposed to production at trial is necessary to avoid unfairness to the Plaintiffs; (c) it is not determinable whether the normal prosecution of the action through the discovery of Bosch is inadequate to obtain the information the Plaintiffs' need; and, (d) it is unknown whether any materially relevant documents [non-party] documents or their information equivalents are only available from [the non-party]. Simply put, it is premature for the Plaintiffs' to bring a rule 30.10(1) motion, and the motion should be dismissed.

53     In dismissing the motion, it is necessary to point out that the dismissal is without prejudice to the Plaintiffs bringing the motion later, and the dismissal is without prejudice to whatever defences [the non-party] may have to the renewed motion. For present purposes, my conclusion is limited to concluding that the Plaintiffs do not meet the criteria for a rule 30.10(1) motion at this time. [emphasis added]

Thus, even if sometimes an order dismissing a non-party production motion may be final, Quenneville was not one of those cases. Like in Ambrose, the motions judge had left the door open.

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Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition

Appellate litigators and judges have turned to Sopinka and Gelowitz on the Conduct of an Appeal for guidance since its first publication in 1993. Now in its fourth edition, this authoritative text remains the go-to resource for both novice and seasoned litigators seeking direction on best practices in preparing and presenting appeals. Originally written by former Supreme Court of Canada Justice John Sopinka and Osler partner and litigator Mark Gelowitz, this latest edition adds Osler’s David Rankin as co-author. This up-to-date version is the most current textbook available on appellate practice in Canada and is invaluable for lawyers looking to avoid costly errors while gaining a deep understanding of the procedural and jurisdictional aspects of launching and conducting appeals.

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