



COURT OF APPEAL FOR ONTARIO

CITATION:
Cheung v.
    Samra, 2018 ONCA 923

DATE: 20181119

DOCKET: M49623 (C65583)

Watt, Miller and Nordheimer
    JJ.A.

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)

Darryl Cruz and Meghan Bridges, for the
    moving parties/respondents

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

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]

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]

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 jurys 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]

The trial judge decided that she would not enter
    judgment in accordance with the jurys 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]

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]

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. KalIio
, [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]

Subsequent cases have expanded on that definition.
    For example, the decision in
Ball v. Donais
(1993), 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]

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
(2000), 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]

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 jurys 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 jurys verdict. They also
    complain that they are being deprived of their companion right to a review of
    that decision by this court.

[9]

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]

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]

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
(2005), 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

[12]

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.


