Civil Appeals in Ontario: How the Interlocutory/Final Distinction Became So Complicated and the Case for a Simple Solution.

AuthorKennedy, Gerard J.

Introduction I. Appeals' History, Purposes, and Relation to Access to Justice A. Purposes of Appeals B. Appellate Jurisdiction in Ontario C. The History of the Interlocutory/Final Distinction (i) The English Experience (ii) The Development of the Distinction in Ontario D. Appeals and Access to Justice II. Characteristics of Ontario Case Law A. Methodology B. Number of Disputes C Results and Remedies D. Costs E. Delay F. Appeals G. Conclusions on Ontario Case Law III. Ways Forward A. Elimination (i) Eliminating the Leave Requirement (ii) A Leave Requirement for All Appeals? B. Legislative Adoption of (Something Close to) the Application Approach (i) England and Wales (ii) British Columbia a. Background b. Numbers, Results, and Remedies of British Columbia Cases (iii) Advantages of Legislation (iv) Problems Controllable (v) Proposed Wording C. Interpretation in the Meantime D. Wither the Divisional Court? Conclusion Introduction

[This is] an issue that has bedeviled the profession for decades. (1)

Appellate courts sit at the pinnacle of the legal profession, providing final determinations on the meaning of statutes and the development of the common law. (2) Their decisions are analyzed in law schools for many years after their rulings. The media frequently ask lawyers who lose a case whether they intend to appeal. There are good reasons for these perceptions. As a Toronto law firm's clever advertisement for its appellate practice group advertised, "Who Wins Last, Wins". (3) Or as Jackson J famously wrote regarding apex courts, "[w]e are not final because we are infallible, we are infallible only because we are final." (4)

But not everything appellate courts do accords with their iconic reputation. Many appellate decisions address interlocutory matters unrelated to the merits of a dispute, but rather related to a collateral issue concerning the conduct of the litigation. These issues range from discovery rights to scheduling matters to amendments of pleadings. On the one hand, interlocutory appeals have the clear potential to distort access to justice by causing unnecessary expense and delay, two prime impediments to access to justice. On the other hand, appeals, including interlocutory appeals, play an indispensable role in achieving justice in particular cases, and in righting clear wrongs. Moreover, legal clarity brought by appeals--even interlocutory ones--can help the pursuit of justice in numerous other cases through clarifying the law.

Distinguishing how interlocutory and final appeals are to be treated therefore appears not only defensible but also eminently sensible. However, determining whether an appeal even is interlocutory or final has been the source of significant controversy, with one Court of Appeal for Ontario judge succinctly describing the case law in this area as "unwieldy". (5)

This article seeks to balance, theoretically and practically, the access to justice concerns that interlocutory appeals cause with the access to justice concerns that such appeals fix. Part I lays the doctrinal background necessary to analyze the distinction between interlocutory and final appeals. Part II analyzes characteristics of 149 Ontario cases to highlight the consequences, in terms of delay and financial expense, of uncertainty in the law in this area. Finally, in Part III, suggestions are given for improvement of the law surrounding the interlocutory/final distinction, with the aim of facilitating access to justice. This part draws on the experience of British Columbia in particular, reviewing 105 cases its courts have decided while wrestling with this same issue--61 decided before, and 44 after, legislative amendments that sought to clarify the law in this regard.

Analyzing the experiences of Ontario and British Columbia, and then mapping them onto the distinction's purposes and history, leads to conclusions that are alarming yet hopeful. The Court of Appeal for Ontario is analyzing this issue in dozens of cases each year. This seems an unnecessary waste of time and resources for both litigants and the courts. But there is hope to simplify the law in this area and improve access to justice. A return to first principles and a consideration of other jurisdictions' experiences provide a path to a simpler rule, asking whether the appealed order finally determines the litigation. More provocatively, the place of the Divisional Court, a branch of the Superior Court of Justice, in Ontario appellate practice is questioned. While this will likely require legislative intervention, this will not only prevent needless interlocutory disputes, but also facilitate appeals serving their purposes.

  1. Appeals' History, Purposes, and Relation to Access to Justice

    Before delving into how the interlocutory/final distinction is working in practice in Ontario--and possibilities for reform--some doctrine and history is necessary to set the stage. This section begins by noting the purposes of appeals, as well as standards of review that further explain the purposes of appeals. The history of the interlocutory/final distinction in England and Wales is then reviewed before explaining appellate jurisdiction in Ontario. Finally, the relationship between appeals and access to justice is considered.

    1. Purposes of Appeals

      It has been frequently observed that appeals are creatures of statute and that, historically, the common law gave no "right" of appeal. (6) Even so, appeals are very old. The Court of Exchequer Chamber--the predecessor to the Court of Appeal (England and Wales) for appeals of common law decisions--dates to the fourteenth century. (7) Appeals have evolved for several purposes. One is to ensure the law's consistent application. (8) A related purpose is to allow appellate courts to make and refine the common law, with appellate courts having the responsibility to make law to an extent not shared by trial courts. (9) These purposes apply equally to civil and criminal cases.

      But there is another reason for appeals: to ensure that the losing party at trial has the decision reviewed by a fresh set of eyes to ensure that an injustice has not occurred. This concern is amplified in criminal law, as an error at trial could have devastating consequences. This is addressed in international human rights law, as codified in the International Covenant on Civil and Political Rights. (10) In the civil context, this concern may be less acute, but it still is present, given the potentially serious effects of a substantive injustice in the civil context."

      These purposes of appeals are important. But they are also narrow. Perhaps to prevent intermediary appellate courts misusing their power, the Supreme Court of Canada has restricted appellate courts' ability to interfere with trial judges' decisions. Given their role as law-making courts, appellate courts are primarily only entitled to review trial courts' decisions for errors of law, with trial judges' determinations of law being reviewed on a standard of correctness. (12) Findings of fact, however, are only to be disturbed if tainted by "palpable and overriding error". (13) Questions of mixed fact and law are reviewed on a spectrum of standards depending on the ease with which the question of law can be extracted. (14) In criminal law, the Crown is not entitled to appeal on questions of fact at all. (15) Throughout this, a principle of appellate restraint is strikingly apparent. (16)

      This division of roles is rooted in concerns about both efficiency and expertise. Trial judges see evidence first-hand, and are thus in a privileged position to make findings of fact. (17) And as Iacobucci and Major JJ jointly noted in Housen v Nikolaisen, appellate and trial courts have different purposes: "[W]hile the primary role of trial courts is to resolve individual disputes based on the facts before them and settled law, the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application". (18) Moreover, the principles of judicial economy and finality mandate not interfering with a trial ruling unless clearly warranted. (19)

      These deferential standards are not without controversy--for example, Paul Pape and John Adair have argued that findings of fact should be reviewed on a reasonableness standard. (20) Calls for the Crown to have a right of appeal on findings of fact and/or inadequacy of counsel in criminal cases have also emerged in recent years. (21) Even so, Daniel Jutras has ably argued that appeals are not an intrinsic good or a logical corollary to decision making but rather have particular, discrete purposes such as delineating legal rules. He notes that there may be negative unintended consequences from expanding those purposes, such as needless litigation and inability to view a matter as "over". (22)

    2. Appellate Jurisdiction in Ontario

      Ontario is unique among Canada's provinces in having two appellate courts. Understanding why is necessary to place the subsequent analysis of interlocutory appeals in context. The superior courts of the provinces--in Ontario, the Superior Court of Justice--are Canada's courts of "inherent" jurisdiction. (23) Ontario's appellate courts are, like all Canadian appellate courts, creatures of statute. (24) But Ontario's two appellate courts--the Court of Appeal and the Divisional Court--have different origins. The Court of Appeal's origins trace to the establishment of the Province of Canada's Court of Error and Appeal in 1850. (25) The creation of an independent appellate court was considered preferable to the previous practice of having the Governor's Council act as an appeal court, which had occurred in Upper Canada since 1792. (26)

      The Divisional Court's genesis is markedly different. In 1964, the Robarts government appointed James C McRuer, who stepped down from his position as Chief Justice of the Ontario High Court, to chair the Law Reform Commission of Ontario and a public inquiry into civil...

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