Author
Partner, Disputes, Toronto
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]
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.
