Agreement that order is final does not vest the Court of Appeal with jurisdiction

The Court of Appeal for Ontario has recently reminded practitioners that agreement that an order is final does not vest the Court with jurisdiction. The Court must still be satisfied that it has the necessary jurisdiction to entertain the appeal. In Lee v. Lalu Canada Inc., 2019 ONCA 750, both the appellant and the respondents agreed that the order in question was final and thus an appeal lay as of right to the Court of Appeal. The Court disagreed and quashed the appellant’s appeal. Given the positions taken by the parties, however, the Court declined to make an order as to costs.[1]

The order in question in Lee dismissed the appellant’s motion for a declaration that the appellant was entitled to be indemnified for “all reasonable legal fees and expenses” pursuant to a consulting agreement. The parties argued that this order was final because it finally determined the appellant’s entitlement to advance payment of legal fees. However, the Court of Appeal disagreed on the basis that the order did not determine any substantive issues. For an order to be regarded as final, it “must deal with the substantive merits as opposed to mere procedural rights, no matter how important the procedural rights may be” (Sun Life Assurance Co. v. York Ridge Developments Ltd.).

As is always the case, it is important to have regard for the specific order granted at first instance. In Lee, the motion judge dismissed the appellant’s motion, which the motion judge treated as a motion for partial summary judgment of the issue of entitlement to legal fees under the consulting agreement. There is extensive jurisprudence regarding whether the dismissal of a motion for summary judgment is interlocutory or final. The general rule is that the dismissal of such a motion is interlocutory (not final) unless the motion judge expressly invoked a power to make a binding determination. However, there are exceptional cases, and regard should be had to this larger jurisprudence where it appears that the motion judge may have intended to make a final decision. For more, see Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition, at §1.49-1.50, 1.61.

The potentially complicating factor in Lee was that the appellant’s motion at first instance was actually a motion for interim relief, not a motion for partial summary judgment. For the Court of Appeal, however, it did not matter whether the motion judge had properly characterized the motion. What mattered was that the substantive issues between the parties remained to be determined. The dismissal of the motion did not finally decide whether or not the appellant was entitled to advance funding and thus the order was “clearly” interlocutory. Accordingly, the Court of Appeal quashed the appeal irrespective of the parties’ agreement that the Court had jurisdiction.

Lee demonstrates that even where all parties are content to have the appeal determined by the Court of Appeal, the panel will still make up its own mind as to whether it has jurisdiction. Where that jurisdiction is lacking, the appeal will be quashed. However, the parties’ positions may impact the question of costs.


[1]      Counsel for the parties in Lee were in agreement that the Court of Appeal had jurisdiction, but did not argue that their agreement itself conferred jurisdiction on the Court of Appeal.

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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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Mark Gelowitz

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