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

Interlocutory appeals have the clear potential to distort access to justice, by causing unnecessary expense and delay, two prime impediments to access to justice. As such, Ontario law: a) imposes a leave requirement for interlocutory appeals; and b) legislates that interlocutory appeals be generally brought in the Divisional Court while final appeals are generally brought in the Court of Appeal. At the same time, appeals, including interlocutory appeals, play an indispensable role in achieving justice in particular cases, righting clear wrongs. Moreover, the clarity in the law brought by appeals can help the pursuit of justice in numerous other cases. But determining whether an appeal is interlocutory or final has been the source of much controversy. Coulter Osborne addressed this in the Osborne Report but his recommendations have not yet been incorporated in legislation as recommended, despite requests for this by the judiciary. This article, scheduled for publication in the Queen's Law Journal later this Spring, begins with Part I’s explanation of the purposes of appeals, the history of the interlocutory/final distinction, the legislation and case law governing appellate jurisdiction in Ontario, and the relationship between appeals and access to justice. Part II gives the methodology for analyzing all cases from 2010-2017 in the Divisional Court and Court of Appeal where there was dispute over the interlocutory/final distinction. Part III analyzes these figures, in terms of numbers, results, remedies, costs, delay, clarity of the law, and differences between the Court of Appeal and Divisional Court. These results are not encouraging from an access to justice perspective, with dozens of cases each year analyzing this issue. Part IV suggests that the distinction between interlocutory and final appeals, including the leave requirement for the former, should remain. It is nonetheless suggested that this situation could be improved through simplifying the test for distinguishing interlocutory from final appeals. The experiences of England and Wales and especially British Columbia, both of which have sought to address this issue through legislation, demonstrate that this is a project worth considering. A review of British Columbia case law pre- and post-legislative amendments is a key component of this analysis. A simplification of appellate jurisdiction in terms of merging the Divisional Court and Court of Appeal is a less certain solution but also warrants consideration.