On a motion for an extension of time to perfect an appeal in the Ontario Court of Appeal, a judge is without jurisdiction to conclusively determine that the appeal was brought in the wrong Court due to being interlocutory. Accordingly, the appeal cannot be quashed for that reason at that stage. But that is not to say that this cannot be considered, as part of the discretionary test on whether to grant the extension of time. Juriansz J.A.’s August 1, 2014 decision in Henderson v. Henderson exemplifies this. The decision also considers how to determine whether an order marked “Temporary” but imposing conditions that will lead to a motion’s dismissal if the conditions are not met, is final or interlocutory.

In this family law proceeding, the motions judge ordered that the husband needed to satisfy a number of conditions before he could proceed with a long motion. Juriansz J.A. comprehensively considered whether this order was final or interlocutory:

[3]       Generally, it is clear that the stipulation of terms on which parties may proceed to a final determination of a proceeding is interlocutory. In fact the formal order of Justice Barnes indicates on its face that it is “Temporary”. The cause of difficulty in this case is that Justice Barnes imposed a wrap-up term in his order that if the husband failed to comply with a number of the terms specified earlier in his order by February 12, 2014, his long motion would be “permanently stayed with prejudice.”

[4]       The main authority I was provided with, Laurentian Plaza Corp. v. Martin (1992), 7 O.R. (3d) 111 (C.A.), deals generally with whether orders made on condition are interlocutory or final. Morden J.A. said:

It can, of course, be fairly said that the effect of the order will be final if the conditions are not met. This is what makes the question a difficult one.

One aspect of the difficulty is that orders made on condition vary greatly. For example, they may range from orders imposing: undertakings on defendants; strict time periods for the completion of the pre-trial steps; the obligation to pay the plaintiff’s costs thrown away; to the giving of security in varying amounts with respect to the plaintiff’s claim. As a matter of policy it may seem that some of these orders, which, analytically, are interlocutory, might be appropriately treated as final — but, if this were to be done, where would the line be drawn and how could the definition of what is final be expressed so that it could be applied with some degree of predictability or confidence?

Neither can the nature of the order reasonably turn on the particular circumstances of the defendant. The question of categorization which determines access to appellate review must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case. As I have indicated, jurisdictional rules should be as clear as possible and their application should not be beset with factual disputes which themselves may be protracted and difficult to resolve.

Further, the consideration that the order may have the effect of terminating the proceeding does not mean that it is a final one. See Chesapeake & Ohio Railway Co. v. Ball and Ontario Medical Association v. Miller [citations omitted]

[6]       … [In Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642], Sharpe J.A. offers an interpretation of Laurentian Plaza Corp. which I find pertinent. He said:

I recognize that failure to satisfy an order for security for costs may lead to a dismissal of the claim, but the sanction for non-compliance with an order cannot alter the nature of the order itself. Many procedural or interlocutory orders – for particulars, for production of documents, for the payment of costs ordered in interlocutory proceedings – may carry the ultimate sanction of dismissal of the non-complying party’s claim. But if the claim is dismissed, the dismissal flows from the party’s failure to comply with the interlocutory or procedural order, not from the order itself, and does not alter the interlocutory or procedural nature of the order that led to dismissal …

[7]       In my view this reasoning applies in this case. If Justice Barnes’ order has had the effect of permanently staying the husband’s long motion, the stay has resulted not from the nature of the order itself but from the husband’s failure to satisfy the conditions that the order imposed. The overall intention and effect of Justice Barnes’ order was to impose terms to shepherd the proceeding along to the final hearing and disposition of the long motion.

[8]       It is my opinion that the order under appeal is interlocutory. To obtain an extension of time a party must demonstrate the proposed appeal is not meritless. An appeal of an interlocutory order filed in this court is meritless. I see no purpose in extending the time for the perfection of a matter that is not properly before this court. [emphasis added]

[9]       The husband’s motion for the extension of time is refused. The Registrar may dismiss his appeal for failure to adhere to the time limits. …