COURT OF APPEAL FOR ONTARIO

CITATION: Enerzone Inc. v. Ontario (Revenue), 2016 ONCA 717

DATE: 20160930

DOCKET: C61596

Doherty, Cronk and Pepall JJ.A.

BETWEEN

Enerzone Inc.

Appellant (Respondent)

and

The Minister of Revenue

Respondent (Appellant)

Jessica Fiore and Jason DeFreitas, for the respondent (appellant) the Minister of Revenue

Sean Flaherty, for the appellant (respondent) Enerzone Inc.

Heard and released orally: September 23, 2016

On appeal from the order of Justice J.N. Morissette of the Superior Court of Justice, dated December 9, 2015.

ENDORSEMENT

[1] We are satisfied that the first part of the order dismissing the Minister’s motion is interlocutory.

[2] The Minister moved under various rules effectively seeking an order dismissing Enerzone’s appeal on the basis that the scope of the appeal allowed under the Retail Sales Tax Act, R.S.O. 1990, c. R. 31 (the “Act”) did not extend to the kinds of challenges put forward by Enerzone in its notice of appeal. The motion judge did not accept the Minister’s arguments.

[3] The question for the purposes of determining whether the order is final or interlocutory is this: Did the motion judge decide the scope of the appeal in the sense that the Minister is precluded from raising arguments as to the scope of the appeal on the appeal itself, or did the motion judge decide that the proper scope of the appeal was arguable and a matter to be determined on the appeal itself? If the former, the order is final. If the latter, the order is interlocutory.

[4] The motion judge’s order dismissing the motion simply dismisses the motion. It does not purport to decide anything about the scope of the appeal.

[5] The reasons of the motion judge are somewhat ambiguous. Certain paragraphs, for example para. 32, read in isolation, offer support for the Minister’s position that the motion judge did hold that the proper scope of the appeal under the Act embraced the arguments put forward by Enerzone.

[6] However, reading the reasons as a whole, together with the terms of the order itself, we are satisfied that the motion judge’s order does not preclude the Minister from raising arguments on the appeal as to the scope of the appeal itself. Indeed, counsel for Enerzone frankly acknowledges that the order does not foreclose the Minister from renewing the arguments made on the motion on the appeal itself.

[7] Consequently, in our view, the order is interlocutory. This court has no jurisdiction to address the merits of the appeal, and the appeal must be quashed. It is of course left to the Minister to determine whether the arguments as to the scope of the appeal should or should not be made on the appeal itself.

[8] As a postscript, we observe that the question whether orders made on motions like the motion before the motion judge are final or interlocutory is an ongoing problem in this court. Without intending any criticism of anyone, we observe that the problem could be avoided, or at least mitigated, if more attention was paid by counsel and motion judges to the language of the orders disposing of the motion. Appropriate language in the order could make it clear that the order does or does not purport to finally dispose of a substantive issue between the parties.

[9] The Minister acknowledges that the second part of the order, that is, the production order granted by the motion judge in favour of Enerzone, is interlocutory and therefore any appeal lies to the Divisional Court with leave of that court. We agree. A stay of the production order pending appeal must similarly be sought from the Divisional Court: see rule 63.02(1)(b). We note that the Minister has applied to the Divisional Court for leave to appeal from both parts of the order before us. That application, we are informed, is being held in abeyance pending the disposition of this appeal. That disposition has now been made.

[10] Enerzone is entitled to its costs of the appeal, fixed at $3,500, including disbursements and all applicable taxes.

“Doherty J.A.”

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”