One may be less sanguine about the likelihood of reforming the interlocutory/final distinction were it not for the fact that England and Wales – the jurisdiction that was the source of this controversy – has already done so. Moreover, and closer to home, British Columbia has also amended its legislation regarding interlocutory appeals. Both these jurisdictions have sought to clearly define what appeals do (not) require leave (or “permission” to use the English term203) to be appealed. This section explains how both jurisdictions have done so, analyzing British Columbia’s experience in particular, before turning to the advantages of such legislative intervention, and ways to mitigate its acknowledged disadvantages.
1. England and Wales
As noted above, the Civil Procedure Rule Committee for England and Wales proposed that the more predictable application approach be adopted in the 1980s. And in 1999, the Access to Justice Act, 1999, codified this area of law.204 A “final decision” was defined as “a decision of a court that would finally determine (subject to any possible appeal or detailed assessment of costs) the entire proceedings.”205 What used to be called “interlocutory orders” that did not finally
ONCA 771, [2018] OJ No 4832, contra: 1) Wood v CTS of Canada Co, 2018 ONCA 758, 142 OR (3d) 641; 2) R v CG, 2018 ONCA 751, 142 OR (3d) 489; 3) Carrick (Re), 2018 ONCA 752, 2018 CarswellOnt 15613; 4) Smith v Safranyos, 2018 ONCA 760, 143 OR (3d) 22; 5) R v JL, 2018 ONCA 756, 143 OR (3d) 170; 6) Ghiassi v Singh, 2018 ONCA 764, [2018] OJ No 4974.
203 Civil Procedure Rules (UK) [“UK Civ Pro Rules”], Rule 52.3.
204 A2J 2000 Order, supra note 66, art 1(2)(c); Conduct of an Appeal, supra note 2, § 1.34; Cheung, supra note 63 at 17.
205 A2J 2000 Order, ibid, s 2(c) [emphasis added].
dispose of proceedings can be reviewed only if clearly “wrong or where it was unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”206 There remains criticism that this is too restrictive of appeal rights, allowing a court to avoid addressing a meritorious appeal through denying permission to appeal.207 But the new approach seems more predictable and likely to preserve scarce appellate resources.208 Though this experience is interesting, the difference in court levels between Ontario and England and Wales makes its experience less informative than those of other Canadian jurisdictions. Unlike Ontario, there are multiple trial courts in civil matters “below” the High Court of England and Wales; as such, appeal rights vary with the level of court appealed from as well as the nature of the order appealed. There are thus reasons that make appeal routes complicated beyond the interlocutory/final distinction.209 Fortunately, there is another reference point closer to home.
2. British Columbia a. Background
Like Ontario, British Columbia struggled with this distinction for years.210 The Court of Appeal regularly held that the order approach rather than the application approach be followed,211 despite the reticence of some of its members.212 Steps were then taken to rectify the situation.213 In 2011, Finch CJBC issued a practice directive concerning delay caused by interlocutory appeals, and mandating that counsel discuss dates for such appeals prior to arguing motions for leave to
206 Tanfern, supra note 66, summarizing Part 52.21 of the UK Civ Pro Rules, supra note 203.
207 Richard Nobles & David Schiff, “The Right to Appeal and Workable Systems of Justice” (2002) 65 Modern L Rev 676 at 687-689.
208 Nobles & Schiff, ibid, at 688-689. There does not appear to be a more recent review of this.
209 See, e.g., Nobles & Schiff, ibid.
210 Irvine, supra note 110.
211 Hayes Forest Services Ltd v Weyerhaeuser Co, 2008 BCCA 120, 78 BCLR (4th) 251, aff’g 2007 BCCA 497, 76 BCLR (4th) 39 [“Hayes”]; Forest Glen Wood Products Ltd v British Columbia (Minister of Forests), 2008 BCCA 480, 58 BCLR (4th) 330 [“Forest Glen Wood”].
212 See, e.g., Kimpton v Victoria (City), 2007 BCCA 376, 243 BCAC 158 [“Kimpton”].
213 See also Conduct of an Appeal, supra note 2 at § 1.75.
appeal.214 This perhaps had valuable effects in terms of encouraging cooperation,215 but the real change occurred through legislation. Effective May 31, 2012, the Court of Appeal Act was amended to replace the concept of “interlocutory appeals” with one of “limited appeal orders”
requiring leave to appeal for216 limited appeal orders in a number of situations: classically interlocutory matters such as scheduling, discovery, and evidentiary matters.217 This reduces doubt about whether leave to appeal is required.218
b. Methodology for reviewing British Columbia cases
To assess the effects of these amendments, a search was undertaken in WestLaw Canada and QuickLaw Advance in September 2018 for cases decided in the British Columbia Court of Appeal considering this distinction: between January 1, 2007 through May 30, 2012 using “interlocutory”
and “appeal” within the same paragraph, and from May 31, 2012 through December 31, 2017, searching for: a) “limited appeal order”; or b) “interlocutory” within the same paragraph as
“appeal”.219 The types of cases excluded in Part II were excluded here as well,220 and the same
214 Expediting Interlocutory Appeals (Civil Practice Directive, 19 September 2011), online:
<http://www.courts.gov.bc.ca/court_of_ap peal/practice_and_procedure/civil_practice_directives_/Civil-Expediting%20Interlocutory%20Appeals.htm>.
215 It is difficult to measure the value of such symbolic steps, but there would appear to be little disadvantage to encouraging reflection on this issue. This is done, for instance, with respect to race-based challenges for cause in jury selection: see, e.g., R v Parks (1993), 15 OR (3d) 324 (CA).
216 RSBC 1996, c 77, s 7, as am.
217 Court of Appeal Rules, BC Reg 297/2001 [“BC CA Rules”].
218 “Litigation and Dispute Resolution in Canada” (Blake, Cassels & Graydon, 2012) at 35.
219 Similar to Part II, above, recognizing that the change became effective May 31, 2012.
220 E.g., the following were excluded:
• where a panel varied a single judge denying leave to appeal: CSWU, Local 1611 v SELI Canada Inc, 2010 BCCA 371, 8 BCLR (5th) 241, var’g 2010 BCCA 276, 7 Admin LR (5th) 40;
• motions for leave themselves: e.g., Meade v Armstrong (City), 2010 BCCA 87, 285 BCAC 20;
• where there was dispute over whether the matter should be considered criminal or civil (the majority finding it to be the former negating the need to consider the interlocutory/final decision): British Columbia (Director of Civil Forfeiture) v Hells Angels Motorcycle Corp, 2014 BCCA 330, 360 BCAC 170;
• the Court holding that it had no jurisdiction to hear an appeal from a recital: Law v Cheng, 2016 BCCA 120, 84 BCLR (5th) 238;
• the parties agreed the matter was interlocutory, even though the judge was not sure: Quaite v Avorado Resort Ltd, 2010 BCCA 242, [2010] GSTC 192;
limitations of this analysis as that one are recognized. Evidence of six unreported decisions in British Columbia was found,221 compared to two in Ontario,222 despite there being fewer British Columbia cases in the analysis. This suggests that unreported decisions addressing this issue are more common in British Columbia than Ontario.
The search in British Columbia was both narrower and broader than the search in Ontario.
Regarding narrowness, there was no concentration on issues of costs, delay, and self-represented litigants because the structure of the courts in British Columbia, and lawyers’ fees, make such factors obviously distinguishable from the Ontario experience due to reasons having nothing to do with the interlocutory/final distinction. Given that searching for the effects of change in the law was the purpose of the analysis, numbers, results, remedies, and appeals of civil223 and family cases were recorded.224 Family law cases were included in British Columbia but not Ontario
• where the parties agreed an order was a limited appeal order, but one party argued leave was not necessary given other issues being raised as of right: Hansra v Hansra, 2017 BCCA 199, 97 BCLR (5th) 240;
• where the judge satisfied himself that no leave was necessary even though no party contested the issue:
Gajie v Lam, 2016 BCCA 225, 387 BCAC 171; Ho Estate v Ho, 2016 BCCA 253, [2016] BCJ No 1206;
KMM v DRM, 2017 BCCA 348, 2 RFL (8th) 14;
• decisions under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 [the “BIA”], that require leave to be appealed but did not consider the interlocutory/final distinction per se: Canadian Petcetera Ltd
Partnership, Re, 2009 BCCA 255, 273 BCAC 26 (interpreting s 193 of the BIA);
• where the parties resolved the issue on the own, as this does not illustrate how much time the Court and parties spent on this issue, and it was by happenstance that this was mentioned (it is hard to know how common an occurrence this would be): Westbank Holdings Ltd v Westgate Shopping Centre Ltd, 2009 BCCA 370, 275 BCAC 21; and
• a seemingly uncontroversial amendment of a self-represented litigant’s notice of appeal to a notice of application for leave to appeal having realized leave was necessary: see, e.g., a reference to an unreported decision in 1026238 BC Ltd v Pastula, 2017 BCCA 118, 95 BCLR (5th) 230 at para 3.
221 M(AAA) v British Columbia (Director of Adoption), which was reversed in 2017 BCCA 27, 95 CPC (7th) 215 [“M(AAA)”]; Cotter v Point Grey Golf and Country Club, which was referred to in 2015 BCCA 331, 377 BCAC 1; McGregor v Holyrod Manor, which was referred to in 2015 BCCA 157, 370 BCAC 224;
Keremelevski v VWR Capital Corp, which was affirmed in 2011 BCCA 469, [2011] BCJ No 2249, leave to appeal ref’d, [2012] SCCA No 187, 2012 CarswellBC 1881 [“Keremelevski”]; Bea v Strata Plan LMS 2138, which was affirmed in 2010 BCCA 463, 94 CPC (6th) 117 [“Bea”]; Forest Glen Wood Products Ltd v British Columbia (Minister of Forests), which was affirmed in Forest Glen Wood, supra note 211.
222 Colenbrander, the Court of Appeal decision in which an unreported decision was referenced, supra note 99, and Sherk, an unreported result in which was affirmed, supra note 161.
223 Criminal cases were also not included in the analysis: e.g., R v Carlson, 2010 BCCA 81, 282 BCAC 306.
224 Family law and civil litigation certainly share much in common regarding the inability to achieve justice in courtrooms. But different statutory and social considerations render them distinguishable in many respects,
because they are not distinguished procedurally in British Columbia as they are in Ontario.225 The search was also broader than for Ontario, as it commences with cases decided in 2007, in order to have a comparable number of years pre- and post-legislative change.
c. Numbers, Results, and Remedies of British Columbia Cases
All cases analyzed appear in Appendix I. They can be summarily described as follows:
TABLE 3B: NUMBERS AND RESULTS OF DISPUTES OVER THE