Is the Order Final or Interlocutory?

In Ontario civil actions and applications, with narrow exceptions, there are generally two main appeal routes for an Order of the Superior Court:

1. Final Orders: Appeals are made as of right to the Ontario Court of Appeal.
2. Interlocutory Orders: Appeals require leave (permission) and are directed to the Divisional Court.

Given the distinction, is is imperative you determine if the Order is Final or Interlocutory.

Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, states that a “final order of a judge of the Superior Court of Justice” lies to the Court of Appeal, with detailed exceptions for monetary orders/dismissals for not more than $50,000 and for an order under an act that provides the appeal lies to the Divisional Court. For example, section 76 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 provides that an order under section V of that part of the Act lies to the Divisional Court.

In deciding whether to file an appeal in the Court of Appeal or the Divisional Court, it is critical to ascertain whether the order is “Final”, or “Interlocutory”. Making the wrong choice can lead to a quashed appeal, wasted costs, and lost time (see recently for example Matas Management Services Inc. v. Voreon Inc., 2026 ONCA 157; Rabbani v. Furney, 2025 ONCA 860; Petersen Energía Inversora, S.A.U. v. Argentina, 2025 ONCA 785).

Why does this procedural distinction exist? The underlying policy is proportionality, with the appeal route being dictated by the comparative importance of the appeal to the parties and the public: see  Johnson v. Ontario, 2021 ONCA 650, at para. 12.

What is a “Final” Order?

Sometimes, the route is straightforward. If a trial concludes and a final judgment in a proceeding is rendered, the order is final. However, when decisions are made on motions, the nature of the order can be unclear. While a motion is inherently an interlocutory step in a proceeding, a judge’s decision on that motion may still amount to a “Final Order”.

• A Final Order “determine[s] the real matter in dispute between the parties—the very subject matter of the litigation—or any substantive right to relief of a plaintiff or substantive right of a defendant”: see David v. Loblaw Companies Limited, 2025 ONCA 830, at para. 32 citing Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16.
• In contrast an Interlocutory Order onlydecides a collateral issue and the merits of the case remain to be determined (NDrive, Navigation Systems S.A. v. Zhou, 2023 ONCA 239, at para. 11, citing Hendrickson v. Kallio, 1932 CanLII 123 (ON CA).

How the Court Examines the Order:

In determining if the order is final or interlocutory, the court will review:

1. The Order Itself: The specific language and relief granted in the formal issued and entered order.
2. The Reasons for the Order: The specific language concerning their findings and the issues adjudicated upon and the purpose of those determinations.
3. The Nature of the Proceeding: Whether the order emerged from an interim motion or a step that was intended to apply to the litigation as a whole.
4. Contextual Factors: Any surrounding circumstances that inform whether a substantive right to relief has been resolved.

SeePrescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, at para. 7, and P1 v. XYZ School, 2021 ONCA 901, at para. 12. A helpful summary of the law is also provided at para. 16 of Paulpillai Estate v. Yusuf, 2020 ONCA 655.

Examples of Interlocutory Orders:

• Interlocutory injunctions or interim relief to preserve the status quo: see Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 144.
• Validity of service: see Petersen Energía Inversora, S.A.U. v. Argentina, 2025 ONCA 785.
• Sealing orders: see A. v. B., 2025 ONCA 358.
• Denying intervention: see Heegsma v. Hamilton (City), 2024 ONCA 865.
• Payment out of funds standing to the credit of the action: see NDrive, Navigation Systems S.A. v. Zhou, 2023 ONCA 239.
• Moving to set aside Norwich, Mareva, or CPL orders: see Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932.
• Appointment of a receiver on an interlocutory motion: see Illidge (Trustee of) v. St. James Securities Inc., 2002 CanLII 44971 (ON CA).
• Orders that merely resolve issues arising in the implementation or enforcement of a final order: see Mertec Resource Development Ltd. v. Multi-Minerals Ltd., 1981 CanLII 3016 (ON CA).

Where a decision results in both final and interlocutory orders, the Court of Appeal has advised litigants to initiate each appeal in the proper court, and then bring a motion to combine the appeals within the Court of Appeal, pursuant to s. 6 (2) of the Courts of Justice Act, R.S.O. 1990, c. C.43: see Rosso v. Rosso, 2025 ONCA 822, at paras. 5-12 and Louie v. Han, 2026 ONCA 25 , at para. 12.

The Danger Zone: Legal Nature vs. Practical Effect

Even if the “practical effect” of the order ends the litigation the legal nature of the order may be interlocutory.

Whether an order is Final or Interlocutory “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”: see Laurentian Plaza Corp. v. Martin, 1992 CanLII 7561 (ON CA).

Consider these three cautionary tales where the “practical effect” did not change the interlocutory nature of the order:

• Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 144: Metrolinx planned to remove mature trees at Osgoode Hall. HDI sought an interim injunction to stop the removal pending the determination of treaty rights. The motion judge dismissed the injunction, thus allowing the removal to proceed. The Court of Appeal held this was an interlocutory order as it only addressed temporary relief, not the underlying treaty rights which could continue to be adjudicated. Even though dispute was rendered moot, the order’s legal nature was interlocutory.
• Ontario Medical Assn. v. Miller, 1976 CanLII 679 (ON CA): The plaintiff sought an interlocutory injunction to stop the disclosure of confidential information. The motions judge dismissed the motion. The Court of Appeal held this was an interlocutory order because it didn’t determine the right to the information under the statute, only the interlocutory relief.
• Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784: The plaintiff sought a mandatory interlocutory injunction for the search and production of certain documents. It was dismissed. The plaintiffs argued the dismissal effectively decided the issue of confidentiality permanently. The Court of Appeal disagreed, stating that the legal nature of pre-trial relief governs, not the practical consequences.

Conclusion

Characterizing an order for the purposes of an appeal requires a strict look at the legal rights decided. If you are facing an unfavourable decision on a motion and are considering an appeal, ensuring you are knocking on the correct courthouse door is step one.