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November 17, 2018
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TORONTO - MAY 27: The Osgoode Hall building on May 27, 2012 in Toronto. The building housed Osgoode Hall Law School until 1969 when the faculty was relocated to the campus of York University.

CASE COMMENT: Which court do I appeal to? The Court of Appeal for Ontario provides further clarity on the ‘interlocutory vs final order’ distinction in Cheung v. Samra


Last week, the Court of Appeal for Ontario released its decision in Cheung v. Samra, 2018 ONCA 923, which provides important clarity about the sometimes tricky distinction between interlocutory and final orders.

In short, the Court of Appeal has decisively clarified that in a civil jury trial, if the trial judge declines to enter judgment pursuant to a jury’s verdict and instead orders a new trial under Rule 52.08 of the Ontario Rules of Civil Procedure, that decision is considered interlocutory in nature. The consequence is that an appeal from an order made pursuant to Rule 52.08 lies with the Divisional Court, and the appellant must first seek leave to appeal. If appellants attempt to go to the Court of Appeal, the appeal will likely be quashed and sent to Divisional Court, as it was in this case.


In Cheung, the plaintiffs had sued several health professionals and a hospital for medical negligence. The case went to trial in front of a jury. Typically in a civil jury trial, the jury has to fill out a verdict sheet where they answer whether the defendants are liable for negligence. The verdict sheet often contains four questions on the negligence issue; the “standard of care questions” which ask  (1) Did the defendant breach the standard of care? (2) If so, how?; and the “causation questions” which ask (3) Did the defendants’ breach of the standard cause the injury at issue; and (4) How did the breach cause the injury?

In Cheung, the jury found for the plaintiffs. In most cases, this would result in the judge entering a judgment in accordance with the jury’s verdict. However, in this instance, the lawyers for the health professionals brought a motion asking the Court to not enter judgment pursuant to Rule 52.08 of the Ontario Rules of Civil Procedure, which says the trial judge can order a re-trial where the jury disagrees, makes no finding on which judgement can be granted, or answers some but not all of the questions asked on the verdict sheet, or gives conflicting answers.

The trial judge granted this motion and ordered a retrial on the basis of her conclusion that there were fatal flaws in the jury’s answers on the causation questions.

The plaintiffs sought to appeal the trial judge’s decision as of right to the Court of Appeal for Ontario. However, counsel for the defendants moved to quash the appeal, arguing that the motion judge’s decision to order a retrial was an interlocutory one, and thus the plaintiffs should have sought leave to appeal at the Divisional Court instead.


The Court of Appeal ruled in favour of the defendants, holding that the trial judge’s decision to not enter judgment on the jury’s verdict and order a retrial was interlocutory in nature. In so doing, the Court cited its previous, well-known decision in Hendrickson v Kallio in which Middleton J.A. defined an interlocutory order as one that “does not determine the real matter in dispute between the parties [….] it is interlocutory if the merits of the case remain to be determined.”

From the plaintiffs’ perspective, the decision should have been categorized as final, as a full trial was conducted, and the jury reached a verdict. However, the Court of Appeal disagreed, concluding that a decision to order a new trial “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.”

Notably, the Court did acknowledge that there is at least one reported case in which the Court of Appeal did hear an appeal from an order made pursuant to Rule 52.08, namely, Lang v. McKenna, 2000 CanLII 16814 (CA). In that case, a panel comprising of Osborne A.C.J.O. and Weiler and Charron JJ.A. heard a self-represented individual’s appeal in a case where a jury gave a verdict in his favour but the trial judge granted the defendant’s motion under Rule 52.08 to find that there was no evidence to support the jury’s answer and order a new trial. The Court in that case allowed the self-represented plaintiff’s appeal and set aside the Rule 52.08 order. In Cheung, the Court simply stated that in that case, the issue of whether the order was final or interlocutory was not raised and thus not decided.


This motion to quash was somewhat novel, as there does not appear to be an appellate decision that squarely decided this issue. It is now clear that orders granted under Rule 52 are considered interlocutory, meaning a motion for leave to appeal before the Divisional Court is required. This may of course come as bad news to any party that is successful in a civil jury trial – it means you can go through a lengthy trial, obtain a verdict in your favour from a jury, and if judgment is not entered on the basis of that verdict, you still have no right of appeal.

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