Court of Appeal for Ontario

Date: 20220211 Docket: M52917 (C69683)

Pepall, Thorburn and Coroza JJ.A.

BETWEEN

Alka Singh Client/Respondent (Appellant/Moving Party)

and

Reesa Heft and Heft Law Solicitors/Appellants (Respondents/Responding Parties)

Counsel: Alka Singh, acting in person Nancy Cellucci, for the responding parties

Heard: February 4, 2022 by video conference

Pepall J.A.:

Background

[1] The respondent, Reesa Heft, is a lawyer with the respondent, Heft Law. The appellant, Alka Singh, was her client. The respondents rendered six accounts totaling $152,262.48 to Ms. Singh of which she has already paid $146,940.18.

[2] Ms. Singh applied to have the respondents’ legal bills assessed pursuant to the provisions of the Solicitors Act, R.S.O. 1990, c. S.15. In May 2017, Perell J. made such an order on consent.

[3] The Assessment Officer conducted the assessment and concluded that the respondents had failed to establish that their fees were fair and reasonable. The Assessment Officer reduced the fees to $80,000 plus HST and disbursements. Ms. Singh was therefore entitled to a refund of over $50,000.

[4] The respondents brought a motion before a judge of the Superior Court of Justice opposing confirmation of the Assessment Officer’s Certificate of Assessment.

[5] The motion judge set aside the Assessment Officer’s order and referred the fees to be assessed anew before a different assessment officer. The motion judge concluded that the Assessment Officer had exceeded her jurisdiction as under the Solicitors Act, an assessment officer may not conduct an assessment where, as here, the retainer is disputed. In addition, the motion judge concluded that the Assessment Officer had erred by failing to consider the respondents’ objections and in refusing to receive evidence proffered by the respondents in response to serious allegations of misconduct.

[6] Ms. Singh sought to appeal the order of the motion judge to this court.

[7] The parties then raised the issue of jurisdiction before a single judge of this court. However, a single judge does not have the power to decide whether an appeal is within the jurisdiction of this court and the issue was therefore referred to this panel to decide.

[8] Before us, the respondents argue that the order under appeal is interlocutory and not final in nature and hence any appeal lies to the Divisional Court with leave. Ms. Singh submits that, to the contrary, the order under appeal is final.

Analysis

[9] Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal lies to the Court of Appeal from “a final order of a judge of the Superior Court of Justice”, while s. 19(1)(b) provides that an appeal lies to the Divisional Court from “an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court”. Long ago, in Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), at p. 678, Middleton J.A. for the court explained the distinction between final and interlocutory orders:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.

[10] Since Hendrickson, the court has, on many occasions, considered and refined the distinction between final and interlocutory orders. For example, in Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), at p. 324, the court held that even where an order does “not finally dispose of the rights of the parties to the litigation”, it will be final for the purposes of appeal if it disposes of an issue raised by way of defence and “thereby deprive[s] the defendant of a substantive right which could be determinative of the entire action.” And in Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97 (C.A.), the court held that an order disposing of an application is a final order if it ends the particular proceeding before the court, even if it does not finally determine another, quite possibly larger, issue between the parties which may be determined in a subsequent proceeding or process.

[11] Recently, in Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16, Jamal J.A. (as he then was) summarized the applicable principles as follows:

The main principles that determine whether an order is interlocutory or final are well known:

1. An appeal lies from the court’s order, not from the reasons given for making the order.
2. An interlocutory order “does not determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right[.] Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided”.
3. In determining whether an order is final or interlocutory, “one must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order”.
4. The question of 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”. In other words, the characterization of the order depends upon its legal nature, not its practical effect. [Citations omitted.]

[12] The decision of this court in Karbaliotis v. Anaheim Unit Investors (1996), 89 O.A.C. 58 (C.A.) exemplifies these principles. There, a judge set aside an assessment officer’s certificate of assessment and directed a trial of an issue. On appeal to this court, the appeal was quashed on the basis that it was interlocutory in that it did not finally dispose of the rights of the parties.

[13] Similarly, in Zaldin & Zaldin v. Carpenter, citing this court’s decision in Buck Brothers Ltd., the Divisional Court held that an order setting aside a certificate of assessment and remitting the matter for a new hearing was interlocutory. In contrast, in Somerleigh v. Brayshaw (1993), 15 C.P.C. (3d) 160 (Ont. Div. Ct.), the Divisional Court held that an order that set aside an assessment officer’s report but settled the account was a final order. The motion judge had finally determined the substantive issue between the parties.

[14] As in Kabaliotis and Zaldin, in the case before us, the motion judge set aside the certificate of assessment and directed that a new assessment be conducted before a different assessment officer. The motion judge did not finally dispose of the matter. The subject matter of the litigation between the parties and their substantive rights remain to be determined. As a result, the order Ms. Singh seeks to appeal is interlocutory.

[15] Ms. Singh relies on this court’s decision in Lala v. Basman Smith LLP, 2017 ONCA 614, where this court considered an appeal of an order setting aside an assessment officer’s certificate of assessment and referring the matter to a new assessment officer. The fact that this court may have heard an appeal from such an order does not establish the court’s jurisdiction. Where a party seeks to rely on case law in which the issue of jurisdiction was not raised or decided, the case law is not conclusive. For example, in CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare Trust Co. of Canada, 2015 ONCA 846, 342 O.A.C. 49, at para. 12, the court held that appeal decisions where the issue of jurisdiction was not raised or decided do not establish the jurisdiction of the court in a subsequent appeal. In Lala, although appellant’s counsel cited the basis for jurisdiction in the notice of appeal and factum, there is no suggestion that the court’s jurisdiction was contested by the respondent, nor did the court address or even mention the issue of jurisdiction. As such, Lala and cases like it are not determinative of jurisdiction.

[16] In the alternative, Ms. Singh submits that both the motion judge’s conclusion that the Assessment Officer exceeded her jurisdiction by interpreting the scope of the retainer and her decision relating to the admissibility of certain evidence were final decisions. As such, she argues that this court has jurisdiction over any attendant interlocutory component of the order.

[17] I do not agree with Ms. Singh’s submission. As mentioned, an appeal lies from the order, not from the reasons for decision. The order made by the motion judge is not similar to the orders relied upon by Ms. Singh: Ball; Stoiantsis v. Spirou, 2008 ONCA 553, 91 O.R. (3d) 184; Hopkins v. Kay, 2014 ONCA 514; and Abbott v. Collins (2002), 62 O.R. (3d) 99 (C.A.). In all of these cases, the court considered the order to be final because it disposed of a substantive right of the defendant by precluding it from raising an issue that could be determinative of the appeal. This is not the case here.

[18] Similarly, the evidentiary decision was interlocutory in nature as it did not determine the matter in dispute nor any substantive right: see e.g., Bonello v. Gore’s Landing Marina (1986) Limited, 2017 ONCA 632, 39 C.C.L.T. (4th) 175, at para. 14.

Disposition

[19] In conclusion, the order of the motion judge is interlocutory in nature and the appeal is to the Divisional Court with leave. Accordingly, I would order that the appeal to this court be quashed and that the appellant pay the respondents $1,500 in costs inclusive of disbursements and applicable tax. Counsel for the respondents advised at the hearing of this motion that the respondents will consent to an extension of time for Ms. Singh to seek leave to appeal to the Divisional Court.

Released: February 11, 2022 “S.E.P.” “S.E. Pepall J.A.” “I agree. Thorburn J.A.” “I agree. S. Coroza J.A.”