Appellate Jurisdiction Over Interrelated Final And Interlocutory Orders (with A COVID Practice Point)

• Published date: 27 April 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Civil Law
• Law Firm: Osler, Hoskin & Harcourt LLP
• Author: Mr W. David Rankin

The Court of Appeal for Ontario recently commented on the jurisdiction of the court over interrelated final and interlocutory orders. In Martin v. 11037315 Canada Inc., 2021 ONCA 246, the court below set aside default judgment (an interlocutory order) and also ordered that certain property be listed for sale and the proceeds distributed in a particular manner (final orders). Justice Pepall held that it was at least arguable that the court had jurisdiction given the interrelationship between the issues engaged by the orders under appeal. The appellants were permitted to proceed with their motion to restore the appeal, which the Registrar appears to have dismissed for delay.

Background

Justice Pepall briefly outlined the background related to the jurisdictional issue. Essentially, the court below exercised its equitable jurisdiction to restore a homeowner to the equity she had in her home, which she had lost when the appellants (numbered corporations) obtained a foreclosure order by default judgment. There appears to be more to the story on how these numbered corporations came to foreclose against this individual's home by default judgment. For purposes of the jurisdictional issues, there were essentially three categories of orders subject to the appeal:

1. An order setting aside the default judgment foreclosing on the home (interlocutory);
2. Orders for the sale of the home and for the payment of the proceeds so that the homeowner recovers her equity in the property net of the mortgage and other obligations (final); and
3. An order dismissing the motion of one of the corporation to vary the orders based on a "new fact" (interlocutory).

The mix of final and interlocutory orders raises a potential jurisdictional issue, as the Court of Appeal generally does not have jurisdiction over appeals of interlocutory orders. Justice Pepall raised this issue with counsel, who seemed content to proceed in the Court of Appeal. As we have written about before, the consent of the parties cannot confer jurisdiction upon the Court of Appeal.

Application of Section 6(2) of the Courts of Justice Act

Section 6(2) of the Courts of Justice Act grants the Court of Appeal jurisdiction over an appeal that lies in the Divisional Court, provided there is a concurrent appeal in the Court of Appeal in the same proceeding. Where the Court of Appeal has jurisdiction under this provision, the power to exercise that jurisdiction is discretionary. This is a powerful tool to avoid a multiplicity of...