Court of Appeal for Ontario

Date: November 19, 2018

Docket: M49623 (C65583)

Judges: Watt, Miller and Nordheimer JJ.A.

Parties

Between

Rhonda Hong-Ching Cheung, a minor by her Litigation Guardian, Yuen Ni Cheung-Kwan, Ronald Chun-Pok Cheung, Raymond S.H. Cheung and the said Yuen Ni Cheung-Kwan, personally

Responding Parties (Appellants)

and

D. Samra, J. Ma, A. Joglekar, A. Madikiza, Rouge Valley Health System Centenary Health Centre Site, G. Mitchell, S. Treuer, P. Taylor, J. Moses, A. Bartlay, M. Jacobs, A. Tranter and S. Reno

Moving Parties (Respondents)

Counsel

For the moving parties/respondents: Darryl Cruz and Meghan Bridges

For the responding parties/appellants: Gavin MacKenzie, Hilik Elmaleh and Brooke MacKenzie

Hearing

Heard: November 16, 2018

On appeal from: The order of Justice Darla Wilson of the Superior Court of Justice dated June 5, 2018 with reasons reported at 2018 ONSC 3480

Reasons for Decision

[1] Motion to Quash

The moving parties bring this motion to quash the plaintiffs' appeal from the order of D. Wilson J. dated June 5, 2018 on the basis that the order in issue is an interlocutory, not final, order and thus is only appealable to the Divisional Court with leave. At the conclusion of the hearing, we quashed the appeal with reasons to follow. We now provide those reasons.

[2] Background – Medical Negligence Action

This is a medical negligence action concerning the obstetrical care provided by the moving parties to the plaintiff, Yuen Ni Cheung-Kwan, while she was pregnant with Rhonda Hong-Ching Cheung. There was a multi-day trial before a jury on the issue of causation. Ultimately, the jury found in favour of the responding parties. However, there was an issue over the answers that the jury had provided to the questions asked. The moving parties asked that judgment not be entered in accordance with the jury's verdict pursuant to r. 52.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The responding parties asked that judgment be entered.

[3] Trial Judge's Decision

The trial judge decided that she would not enter judgment in accordance with the jury's verdict. Rather, in detailed reasons, she concluded that a new trial was necessary because "the answers of the jury on causation are fatally flawed": Cheung v. Samra, 2018 ONSC 3480, at para. 95.

[4] Issue – Jurisdiction of Appellate Court

The moving parties contend that the order in issue is an interlocutory order and therefore any appeal lies to the Divisional Court with leave – Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b). The responding parties contend that the order is final and thus the appeal lies to this court – Courts of Justice Act, s. 6(1)(b).

[5] Definition of Final and Interlocutory Orders

There have been many efforts made to enunciate the difference between final and interlocutory orders. One of the first such efforts is found in Hendrickson v. Kallio, [1932] O.R. 675 (C.A.). In that decision, Middleton J.A. said, at p. 678:

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 applications, but it is interlocutory if the merits of the case remain to be determined.

[6] Expansion of the Definition

Subsequent cases have expanded on that definition. For example, the decision in Ball v. Donais, 13 O.R. (3d) 322 (C.A.) held that where a substantive right of a party was determined, even if other aspects of the proceeding remained to be determined, the resulting order was a final order.

[7] Analysis – Order Directing New Trial is Interlocutory

In our view, the order in question here is interlocutory. Contrary to the position of the responding parties, it does not decide any substantive right between the parties. Rather, the order directs that a new trial be held where those substantive rights will be determined. The conclusion that an order directing a new trial is interlocutory is consistent with a number of other decisions where mistrials have been declared (and consequently a new trial was necessary). Those orders have, with one possible exception, consistently been held to be interlocutory: see, for example, Williams et al. v. Grand River Hospital et al., 2016 ONCA 793, 134 O.R. (3d) 319. The one possible exception is Lang v. McKenna, 135 O.A.C. 304. However, in that case, it does not appear that the issue of whether the order was final or interlocutory was raised nor was it determined by the panel hearing that appeal.

[8] Responding Parties' Position – Completed Trial

The responding parties resist the comparison to cases where mistrials were declared on the basis that, in this case, the trial was completed and the jury's verdict received. The responding parties say that, unlike the mistrial cases, in this case the trial was finally adjudicated and that they are being deprived of their "right" to the jury's verdict. They also complain that they are being deprived of their companion "right" to a review of that decision by this court.

[9] Rejection of Responding Parties' Position

There are two problems with the position of the responding parties. First, the responding parties are not being deprived of their right of review. The only issue is which of this court or the Divisional Court is the appropriate forum for that review. Thus, it is not the "right" of appeal but the forum for the appeal process that is at issue. Second, whether the order is final or interlocutory turns on the order that was granted, not the order that might have been granted. The fact that, had the trial judge reached the opposite conclusion, the resulting order would have been final, does not dictate that the order given is final. To the contrary, just as a summary judgment is a final order, an order dismissing a motion for summary judgment is interlocutory. The responding parties' position runs afoul of the point made in Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53, 330 O.A.C. 142, where MacFarland J.A. said, at para. 22:

This submission presumes that, to be a final order, an order need only dispose finally of whatever issue was before the motion judge irrespective of whether the order terminates the action or resolves a substantive claim or defence of the parties. Were that so, the distinction between interlocutory and final orders would cease to exist.

[10] Order Does Not Determine Substantive Rights

The fact is that the order of the trial judge does not finally determine the rights of the parties nor does it determine a substantive claim or defence. Indeed, it does the opposite. It requires that the parties have another trial for the very purpose of determining those issues.

[11] Procedural Observation – Formal Order

Before concluding, we would add one further observation. The formal order in this case has not been taken out. The court raised this concern with counsel prior to the hearing. Counsel acknowledged their oversight in this regard but urged us to hear the motion in any event. We chose to do so in order to avoid the delay that would have been occasioned through an adjournment of this matter, especially if we concluded that the matter had to be transferred to the Divisional Court. However, we would reinforce that this is not the proper procedure to be followed in such matters. The formal order must be taken out since any appeal lies from the order, not from the reasons: Grand River Enterprises v. Burnham, 197 O.A.C. 168 (C.A.) at para. 10. Further, in some instances, the precise wording of the order may have an impact on the proper analysis.

Disposition

The appeal is quashed. The matter is transferred to the Divisional Court for the purpose of permitting the responding parties to bring a motion for leave to appeal. The moving parties are entitled to their costs of the motion fixed in the agreed amount of $12,000 inclusive of disbursements and HST.

"David Watt J.A."

"B.W. Miller J.A."

"I.V.B. Nordheimer J.A."