In Walchuk Estate v. Houghton, the Ontario Court of Appeal dismissed a motion to quash an appeal on the basis that the lower court's adjournment of a contempt motion was a final order. The decision also provides guidance, yet again, on the proper test for distinguishing between final and interlocutory orders.
Background
In 2011, Walchuk obtained judgment against the appellant, Houghton, for $105,000. In December 2013, Walchuk attempted to examine Houghton in aid of execution on the judgment. Houghton did not attend the examination. Walchuk subsequently brought a motion for contempt. Harper J adjourned the contempt motion and ordered that Houghton attend an examination in aid of execution and produce the relevant documentation at the examination. While Houghton did attend the examination, he failed to bring any of the requested documentation. Moreover, the day before the scheduled examination, Houghton filed for bankruptcy.
Since Houghton failed to produce the requested documents, Walchuk renewed her motion for contempt. Houghton argued that pursuant to section 69 of the Bankruptcy and Insolvency Act, RSC 1985, the contempt proceedings against him were stayed. On March 9, 2015 Harper J concluded that section 69 did not stay the contempt proceedings against Houghton and ordered that the contempt motion be heard at a later date.
Houghton appealed this decision and brought a motion to stay the contempt proceedings pending the outcome of this appeal. Walchuk brought a cross-motion to quash the appeal.
Analysis
The issue before the Court of Appeal was whether or not Harper J's March 9, 2015 decision was a final or interlocutory order.
In order to address this issue, the Court of Appeal noted: "The starting point is to look at the judgment or order itself, and not the reasons for the judgment" (at para 12). However, the Court went on to say that "[I]n some cases, to determine whether an order is truly final or interlocutory, one needs to look at the reasons" (at para 14). The Court further clarified this test and stated: "If the reasons show that the defendant has been deprived of a substantive right or defence that could resolve all or part of the proceedings, then the order is final" (at para 14).
Here, Harper J's judgment alone appeared to be interlocutory – it adjourned, rather than finally disposed of the contempt motion. However, the Court of Appeal held that this was an appropriate case to look to the reasons of the judgment. The Court of Appeal held that since Harper J determined that section 69 did not stay the contempt proceedings, Houghton was potentially deprived of a right or defence that would have ended the proceedings against him. On this basis, the Court of Appeal held that Harper J's judgment was indeed a final order and thus, the motion to quash the appeal was dismissed.
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