COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. Nanji, 2020 ONCA 591

DATE: 20200918

DOCKET: M51732 (C68536)

Gillese, Lauwers and Benotto JJ.A.

BETWEEN

Attorney General for Ontario

Respondent/Moving Party

and

Persons Unknown

Respondents

and

Hasina Nanji, Indra Gordon, and Advocacy Centre for Tenants Ontario

Appellants/Responding Parties

Sarah Blake and Domenico Polla, for the respondent/moving party

Benjamin Ries, Joe Myers, and Moira Daly for the appellants/responding parties

Kristin A. Ley, Mark Melchers, and Joseph J. Hoffer, for the Federation of Rental Housing Providers of Ontario, participating party pursuant to the order of Pepall J.A.

Heard: in writing

REASONS FOR DECISION

[1] This is an appeal from the order of Myers J. dismissing a motion for an interim stay of the order of Chief Justice Morawetz with reasons reported at 2020 ONSC 4676.

[2] The respondent Attorney General for Ontario (AGO) moves for an order quashing the appeal on the basis that the order appealed from is interlocutory and this court lacks jurisdiction. The appellants, Hasina Nanji, Indra Gordon and the Advocacy Centre for Tenants Ontario, submit that the order under appeal finally determined the issues raised and is thus final. For the following reasons, we conclude that the order appealed from is interlocutory and this court does not have jurisdiction.

[3] By order dated March 19, 2020, Chief Justice Morawetz ordered that “the eviction of residents from their homes pursuant to eviction orders issued by the Landlord and Tenant Board or writs of possession, are suspended” during the suspension of regular court operations due to the COVID-19 pandemic. At the end of June 2020, the Chief Justice advised that a phased resumption of some in-person hearings would begin on July 6, 2020. The AGO brought a motion seeking clarification about the status of future eviction orders. On July 6, 2020, the Chief Justice ordered that the moratorium on evictions – ordered in March 2020 – would end on July 31, 2020.

[4] The appellants seek to be recognized as class representatives for vulnerable tenants seeking to avoid eviction. They requested an urgent case conference to deal with the scheduling of their application. They also brought a motion seeking an interim stay of the order of July 6, 2020 until their motion to set aside the order of the Chief Justice can be heard. On August 2, 2020, the motion judge dismissed the appellants’ motion for an interim stay.

[5] The appellants submit that the order is final and this court, not the Divisional Court, has jurisdiction. They submit that, while the order appears interlocutory on its face, the exceptional nature of the order must be considered because: (i) it effectively determined that their case was not justiciable; and (ii) as the eviction orders are enforced, the individual appellants will have no further interest in the action. In other words, the motion judge finally determined the issue of jurisdiction and disposed of the substantive rights of the individual appellants.

[6] We do not agree.

[7] The appeal involves an interim stay pending an interim motion in an application. The motion to set aside the Chief Justice’s order remains outstanding.

[8] The general principle is that “an order granting a stay is final, but an order refusing one is interlocutory”: McClintock v. Karam, 2017 ONCA 277.

[9] An order is interlocutory if the merits of the case remain to be determined: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.). The motion judge specifically stated that he was “not deciding the motion on its merits”. The appellants say that, despite this wording, the order “cannot be reconciled with a continuation” of their motion. Again, we disagree. The motion judge spoke directly to a continuation of the motion and the application by referring to the need for a case conference to determine who will be the parties, who should be given notice, whether representation orders ought to be made and the provision of a schedule for exchange of material and cross-examinations. The need for broad participation is demonstrated by this court’s order granting leave to the Federation of Rental Housing Providers of Ontario to participate in this motion by filing a factum.

[10] The appellants’ submission conflates the merits of their appeal with the nature of the order under appeal. The issues raised by the appellants go to the merits of their appeal which is within the jurisdiction of the Divisional Court.

[11] The order of August 2, 2020 is interlocutory, and this court has no jurisdiction to hear the appeal: Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 19(1)(b).

[12] The appeal is quashed. Consequently, there is no need to consider the appellants’ motion for directions.

[13] Costs were not sought, and none are ordered.

“E.E. Gillese J.A.”

“P. Lauwers J.A.”

“M.L. Benotto J.A.”