



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 Justices 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] 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 courts 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.


