Court of Appeal for Ontario imposes costs where lack of jurisdiction was clear

In Benarroch v. Abitbol, the Court of Appeal for Ontario recently fixed substantial indemnity costs at $22,000 for a motion to quash an appeal for lack of jurisdiction. The respondent successfully moved to quash the appeal on the basis that the family law order under appeal was interlocutory and thus outside the jurisdiction of the Court of Appeal.

As noted in previous posts to this Blog, only a panel of the Court of Appeal can hear a motion to quash for lack of jurisdiction. In Benarroch, the authorities were clear that the order—which required the appellant to make certain payments such as spousal and child support payments—was interlocutory and not final. The Court of Appeal wrote:

In our view, it was plain and obvious on the authorities that this order was interlocutory and not appealable to this court. Counsel for the respondent put counsel for the appellant on notice of its position that this court had no jurisdiction shortly after the appeal was launched. This motion should not have been necessary. In our view, this is an appropriate case for costs on a substantial indemnity basis, both in respect of the motion and the appeal itself. We fix those costs at $22,000, inclusive of disbursements and relevant taxes.

Distinguishing between final and interlocutory orders can be notoriously challenging at the margins, but the answer is clear in most cases. Benarroch involved a garden-variety interlocutory order, and demonstrates that where the jurisprudence is clear, parties ignore it at their own peril.

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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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