On May 22, 2015, in Akagi v. Synergy Group (2000) Inc.,
the Ontario Court of Appeal considered the proper route for
appealing ex parte orders and orders made in the
receivership context. Three points applicable to general appellate
practice in Ontario emerge from the decision:
First, the Court held that if orders that may be interlocutory
end up being subsumed by later orders that are final, a joint
appeal of the interlocutory and final orders will be brought to the
Court of Appeal.
Second, an order finally determining receivership issues,
leaving no action or further application in which any further
rights will be determined, is likely to be considered a final
order, with a right of appeal to the Court of Appeal.
Third, an appellant is not obliged to follow the route for
setting aside ex parte orders if they were subsumed in a
subsequent order, made with notice.
The case emerged from what the Court described as a
"saga", with numerous trips to various levels of Court in
Ontario. Eventually, the plaintiff obtained a judgment in an
undefended trial. Less than two weeks later, the plaintiff brought
an ex parte application before the Commercial List in
Toronto, and obtained an Order appointing a receiver of the assets,
property and undertakings of two respondents (the "Initial
Order"). The receiver later obtained three further ex
parte orders, expanding its powers (the "Subsequent
Orders"). Affected parties then brought a motion to have the
Initial Order and the Subsequent Orders set aside, but they were
unsuccessful, leading to the "Come-Back Hearing
On appeal, one of the respondents disputed the Court of
Appeal's jurisdiction to hear the appeal. For a unanimous
Court, Justice Blair disagreed. His analysis read in pertinent
 Counsel for Mr. Akagi advanced
two arguments that he submits undermine this Court's
jurisdiction to hear the current appeal.
 First, he argued that the orders
under attack are interlocutory and therefore this Court does not
have jurisdiction to deal with them. In the circumstances here, I
 The Initial Order was obtained
on application. No relief was claimed other than the appointment of
a receiver. There was nothing more to be disposed of once that
relief was granted. In the context of the proceedings, it was not
intended to be interim or interlocutory in nature pending the
outcome of a proceeding involving Mr. Akagi or anyone else.
 Although Mr. Akagi's counsel
refers to the orders as "separate receivership orders",
the character of the Subsequent Orders is unclear because the
Receiver did not file a notice of motion, notice of application or
any formal record on any of the subsequent ex parte
 In any event, they are subsumed
in the September 16, 2013 Come-Back Hearing Order, which is a final
order. It finally disposes of the receivership issues between the
parties to the Initial Order and between the Receiver and the
numerous non-parties caught by the Subsequent Orders. There is no
action or application in which any further rights will be
determined. There will be no pleadings defining the issues and
giving the appellants the opportunity to defend. This conclusion is
consistent with decisions of this court, faced with similar
circumstances, holding that a receivership order obtained by way of
application is a final order from which an appeal lies directly to
this Court [...]
 Secondly, counsel for Mr. Akagi
argued that a direct appeal to this court from the Initial and
Subsequent Orders is inappropriate because the Rules of Civil
Procedure provide for the steps to be taken to set aside an
ex parte order. Again, I disagree. This argument overlooks
the fact that the come-back hearing effectively provided that very
On the merits, Justice Blair allowed the appeal and set aside
all of the orders.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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