Is an order dismissing a motion to examine a non-party final or interlocutory? In Ambrose v. Zuppardi, the Ontario Court of Appeal said “it depends”, narrowing the holding of a 1980 case (Smerchanski v. Lewis) that said such orders were final. Essentially, the Court held that such rulings would be considered interlocutory unless the information sought from the witness at issue could not be obtained from the parties themselves. The Court’s judgment read, in pertinent part:

[4] The appellants argue that the order below is final. They rely on this court’s decision in Smerchanski v. Lewis (1980), 30 O.R. (2d) 370 (C.A.) in which the plaintiff appealed from an order quashing two subpoenas against non-parties. In concluding that the order on appeal was a final order, Arnup J.A. adopted the reasoning in this court’s earlier decision in Guaranty Trust Co. of Canada. v. Fleming, [1946] O.R. 817 (C.A.), at pp. 828-29, that such an order “finally and absolutely disposes of the right of the [non-party] to refuse to attend and be examined for discovery by counsel for the respondents.”

[5] However, in decisions such as Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 28 C.P.C. (4th) 16 (Ont. C.A.), Smerchanski has been weakened. In Sun Life the motion judge had quashed a summons of a non-party witness because it did not appear that the witness had any evidence that could not be obtained from the parties to the action. This court quashed the appeal from that order on the basis that it was interlocutory. It reasoned that the information sought may be available from the parties themselves. Weiler J.A. expressed the rationale as follows. “If, after examining the parties, counsel for York Ridge feels it has been frustrated in its pursuit of information it would be able to bring a further motion to obtain the information…. The order quashing the subpoena to Mr. Swartz was therefore an interlocutory order because it did not finally dispose of the issue between Swartz and the party seeking to examine him.”

[6] Smerchanski was further weakened in the subsequent decision in Royal Trust Corporation v. Fisherman (2001), 55 O.R. (3d) 794 (C.A.), in which this court, following Sun Life, emphasized that Smerchanski does not stand for the proposition that all orders in which the court denies a request to obtain information from non-parties are final. Simply put, if the motion requesting information is dismissed where the information sought from the non-party may still be available from the parties to the action, the order is interlocutory.

[7] It is of note that in Royal Trust, Finlayson J.A. went out of his way to highlight that the judgment in Smerchanski had been criticized on the basis that it does not “sit well” with prior jurisprudence. He expressed the view that Smerchanski does not stand for the proposition that all orders directed to a non-party are final and stated that the principle expressed in that case should not be further expanded.

[8] We agree with this view. Smerchanski should be restricted to cases in which there are like circumstances – a ruling made in the course of a trial quashing a subpoena of a witness in circumstances where the information sought to be obtained from the witness cannot be obtained from the parties’ themselves. [emphasis added]

[9] It follows, as Finlayson J.A. counselled, that the reasoning of the motion judge in making the order under appeal is relevant to whether the order is final or interlocutory. Here, the motion judge dismissed the motion to a large extent on the basis that since discoveries were not yet complete, it remained open to the appellants to question the parties about Dr. Lam’s treatment of Mr. Ambrose. Simply put, the door to obtaining the information sought from the parties themselves, remains open.

[10] Based on the principles that emerge from Sun Life and Royal Trust, the order under appeal is interlocutory and the appeal lies to the Divisional Court, with leave.

[11] For these reasons the appeal is quashed, without prejudice to the appellant’s right to seek leave to appeal to the Divisional Court in Toronto. The time to seek leave to appeal is extended by 60 days from the date this order is issued and entered.