Court of Appeal judge calls for reform of final-interlocutory distinction

We have written before in this blog where a judge of the Court of Appeal for Ontario has called for legislative reform of the statutory appeal routes in the Courts of Justice Act. Recently in 1476335 Ontario Inc. v. Frezza, 2021 ONCA 732, Justice Brown called on the Legislature to reform the final-interlocutory distinction for purposes of appellate jurisdiction:

[15]       I conclude by observing that one of the great on-going failures of the Ontario civil justice system is the confusion entrenched in the Courts of Justice Act, R.S.O. 1990, c. C.43 concerning appeal routes from orders made by judges of the Superior Court of Justice: Does the appeal lie with leave to the Divisional Court or as of right to this court? Such confusion inflicts unnecessary legal costs on parties, delays the resolution of appeals on their merits and, as this case illustrates, sows uncertainty about how a party can attempt to protect its rights pending an appeal.

[16]       There is absolutely no excuse for such confusion to continue. Simple “bright line” appeal route solutions are available. I would hope that at some point in the near future the Ontario Legislature will awake and address this far-too-long-outstanding stain on our civil justice system. In my respectful view, the Legislature needs to enact legislation that creates an unambiguous “bright line” explaining when an appeal lies to the Divisional Court and when it lies to the Court of Appeal for Ontario. The current final/interlocutory dividing line is an expensive, time-wasting anachronism. Implementing a “bright line” solution is not a hard task: all it needs is a bit of creativity, political will, and concern for the health of our ailing civil justice system.

We agree. Although the final-interlocutory distinction is a favourite topic of this blog, it raises serious access to justice concerns. We elaborate in Sopinka & Gelowitz on the Conduct of an Appeal, Fourth Edition, that the existing law is a disservice to litigants, particularly self-represented litigants, who have to spend time and resources determining the appropriate appeal route in the face of an inherently uncertain legislative standard. We also outline the alternatives. As justice Brown noted in Frezza, replacing the final-interlocutory distinction with “bright line” appeal routes would solve the problem.

There is precedent for bright-line solutions to this final-interlocutory debate. England, the birthplace of the distinction, codified its appeal routes with statutory precision. Similarly, British Columbia replaced the final-interlocutory distinction with a list of “limited appeal orders” requiring leave to appeal.

If Ontario ever follows the British Columbia approach, we would suggest that the Legislature review the case books—such as Sopinka & Gelowitz on the Conduct of an Appeal—for guidance on what should constitute a “limited appeal order”. The Court of Appeal’s extensive jurisprudence on the final-interlocutory distinction reflects good practical sense regarding the appropriate appeal routes. Combine that with the certainty of a statutory list, and Ontario’s access to justice objectives can be advanced.