



COURT OF APPEAL FOR ONTARIO

CITATION: Singh v. Heft, 2022 ONCA 135

DATE: 20220211

DOCKET: M52917 (C69683)

Pepall, Thorburn and Coroza
    JJ.A.

BETWEEN

Alka Singh

Client/Respondent

(Appellant/Moving Party)

and

Reesa Heft and Heft Law

Solicitors/Appellants

(Respondents/Responding Parties)

Alka Singh,
    acting in person

Nancy Cellucci, for the responding
    parties

Heard: February 4, 2022 by video conference

Pepall J.A.:

Background

[1]

The respondent, Reesa Heft, is a lawyer with the respondent, Heft Law.
    The appellant, Alka Singh, was her client. The respondents rendered six
    accounts totaling $152,262.48 to Ms. Singh of which she has already paid
    $146,940.18.

[2]

Ms. Singh applied to have the respondents legal bills assessed pursuant
    to the provisions of the
Solicitors Act
,
    R.S.O. 1990, c. S.15. In May 2017, Perell J. made such an order on consent.

[3]

The Assessment Officer conducted the assessment and concluded that the
    respondents had failed to establish that their fees were fair and reasonable.
    The Assessment Officer reduced the fees to $80,000 plus HST and disbursements.
    Ms. Singh was therefore entitled to a refund of over $50,000.

[4]

The respondents brought a motion before a judge of the Superior Court of
    Justice opposing confirmation of the Assessment Officers Certificate of
    Assessment.

[5]

The motion judge set aside the Assessment Officers order and referred
    the fees to be assessed anew before a different assessment officer. The motion
    judge concluded that the Assessment Officer had exceeded her jurisdiction as
    under the
Solicitors Act
,
an assessment
    officer may not conduct an assessment where, as here, the retainer is disputed.
    In addition, the motion judge concluded that the Assessment Officer had erred
    by failing to consider the respondents objections and in refusing to receive
    evidence proffered by the respondents in response to serious allegations of
    misconduct.

[6]

Ms. Singh sought to appeal the order of the motion judge to this court.

[7]

The parties then raised the issue of jurisdiction before a single judge
    of this court. However, a single judge does not have the power to decide
    whether an appeal is within the jurisdiction of this court and the issue was
    therefore referred to this panel to decide.

[8]

Before us, the respondents argue that the order under appeal is
    interlocutory and not final in nature and hence any appeal lies to the
    Divisional Court with leave. Ms. Singh submits that, to the contrary, the order
    under appeal is final.

Analysis

[9]

Section 6(1)(b) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, provides that an appeal lies to the Court of Appeal from
    a final order of a judge of the Superior Court of Justice, while s. 19(1)(b)
    provides that an appeal lies to the Divisional Court from an interlocutory
    order of a judge of the Superior Court of Justice, with leave as provided in
    the rules of court. Long ago, in
Hendrickson v. Kallio
,
    [1932] O.R. 675 (C.A.), at p. 678, Middleton J.A. for the court explained the
    distinction between final and interlocutory orders:

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

[10]

Since
Hendrickson
, the court has, on
    many occasions, considered and refined the distinction between final and
    interlocutory orders. For example, in
Ball v. Donais

(1993),
    13 O.R. (3d) 322 (C.A.), at p. 324, the court held that even where an order
    does not finally dispose of the rights of the parties to the litigation, it
    will be final for the purposes of appeal if it disposes of an issue raised by
    way of defence and thereby deprive[s] the defendant of a substantive right which
    could be determinative of the entire action. And in
Buck Brothers Ltd. v.
    Frontenac Builders Ltd.
(1994), 19 O.R. (3d) 97 (C.A.), the court held
    that an order disposing of an application is a final order if it ends the
    particular proceeding before the court, even if it does not finally determine
    another, quite possibly larger, issue between the parties which may be
    determined in a subsequent proceeding or process.

[11]

Recently, in
Paulpillai Estate v. Yusuf
,
    2020 ONCA 655, at para. 16, Jamal J.A. (as he then was) summarized the
    applicable principles as follows:

The main principles that determine whether an
    order is interlocutory or final are well known:

1. An appeal lies from the courts order, not
    from the reasons given for making the order.

2. An interlocutory order does not determine
    the real matter in dispute between the parties  the very subject matter of the
    litigation  or any substantive right[.] Even though the order determines the
    question raised by the motion, it is interlocutory if these substantive matters
    remain undecided.

3. In determining whether an order is final or
    interlocutory, one must examine the terms of the order, the motion judges
    reasons for the order, the nature of the proceedings giving rise to the order,
    and other contextual factors that may inform the nature of the order.

4. The question of access to appellate review
    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. In other words, the characterization of the order depends
    upon its legal nature, not its practical effect. [Citations omitted.]

[12]

The
    decision of this court in
Karbaliotis v. Anaheim Unit
    Investors
(1996), 89 O.A.C. 58 (C.A.) exemplifies these principles.
    There, a judge set aside an assessment officers certificate of assessment and
    directed a trial of an issue. On appeal to this court, the appeal was quashed
    on the basis that it was interlocutory in that it did not finally dispose of
    the rights of the parties.

[13]

Similarly, in
Zaldin & Zaldin v.
    Carpenter
, 1994 CarswellOnt 4517 (Div. Ct.), citing
    this courts decision in
Buck Brothers Ltd.
, the Divisional Court held
    that an order setting aside a certificate of assessment and remitting the
    matter for a new hearing was interlocutory. In contrast, in
Somerleigh v.
    Brayshaw
(1993), 15 C.P.C. (3d) 160 (Ont. Div. Ct.), the Divisional Court
    held that an order that set aside an assessment officers report but settled
    the account was a final order. The motion judge had finally determined the
    substantive issue between the parties.

[14]

As in
Kabaliotis

and
Zaldin
,
    in the case before us, the motion judge set aside the certificate of assessment
    and
directed that a new assessment be conducted
    before a different assessment officer. The motion judge
did not finally
    dispose of the matter. The subject matter of the litigation between the parties
    and their substantive rights remain to be determined. As a result, the order Ms.
    Singh seeks to appeal is interlocutory.

[15]

Ms. Singh relies on this courts decision in
Lala
    v. Basman Smith LLP
,
2017 ONCA 614,

where this court
    considered an appeal of an order setting aside an assessment officers
    certificate of assessment and referring the matter to a new assessment officer.
    The fact that this court may have heard an appeal from such an order does not
    establish the courts jurisdiction. Where a party seeks to rely on case law in
    which the issue of jurisdiction was not raised or decided, the case law is not
    conclusive. For example, in
CIBC Mortgages Inc. (FirstLine Mortgages) v.
    Computershare Trust Co. of Canada
,

2015 ONCA 846, 342 O.A.C. 49, at para. 12, the
    court held that appeal decisions where the issue of jurisdiction was not raised
    or decided do not establish the jurisdiction of the court in a subsequent
    appeal. In
Lala
,
although appellants counsel cited the basis
    for jurisdiction in the notice of appeal and factum, there is no suggestion
    that the courts jurisdiction was contested by the respondent, nor did the
    court address or even mention the issue of jurisdiction. As such,
Lala
and cases like it are not determinative of jurisdiction.

[16]

In the alternative, Ms. Singh submits that both
    the motion judges conclusion that the Assessment Officer exceeded her
    jurisdiction by interpreting the scope of the retainer and her decision
    relating to the admissibility of certain evidence were final decisions. As
    such, she argues that this court has jurisdiction over any attendant
    interlocutory component of the order.

[17]

I do not agree with Ms. Singhs submission. As
    mentioned, an appeal lies from the order, not from the reasons for decision.
    The order made by the motion judge is not similar to the orders relied upon by
    Ms. Singh:
Ball
;
Stoiantsis v. Spirou
, 2008 ONCA 553,
    91 O.R. (3d) 184;
Hopkins v. Kay
, 2014 ONCA 514; and
Abbott v.
    Collins
(2002), 62 O.R. (3d) 99 (C.A.). In all of these cases, the court
    considered the order to be final because it disposed of a substantive right of
    the defendant by precluding it from raising an issue that could be
    determinative of the appeal. This is not the case here.

[18]

Similarly, the evidentiary decision was
    interlocutory in nature as it did not determine the matter in dispute nor any
    substantive right: see e.g.,
Bonello v. Gores Landing Marina
    (1986) Limited
, 2017 ONCA 632, 39 C.C.L.T. (4th) 175, at para. 14.

Disposition

[19]

In
    conclusion, the order of the motion judge is interlocutory in nature and the
    appeal is to the Divisional Court with leave. Accordingly, I would order that
    the appeal to this court be quashed and that the appellant pay the respondents
    $1,500 in costs inclusive of disbursements and applicable tax. Counsel for the
    respondents advised at the hearing of this motion that the respondents will
    consent to an extension of time for Ms. Singh to seek leave to appeal to the
    Divisional Court.

Released: February 11, 2022 S.E.P.

S.E.
    Pepall J.A.

I
    agree. Thorburn J.A.

I
    agree. S. Coroza J.A.


