In its November 17, 2015 decision, The Catalyst Capital Group Inc. v. Moyse,
the Ontario Court of Appeal confirmed that an order dismissing a
motion for contempt is interlocutory and may only be appealed to
the Divisional Court, with leave, under s. 19(1)(b) of the
Courts of Justice Act. The decision also provides guidance
on the proper test for distinguishing between final and
Mr. Moyse was an employee of Catalyst Capital Group Inc
("Catalyst"). When he accepted a position with one of its
competitors, Catalyst became concerned that Mr. Moyse had or would
impart confidential information to his new employer.
As a result, Catalyst obtained a consent order requiring Mr.
Moyse and his employer to preserve and maintain all records in
their possession, power or control relating to Catalyst. Part of
the order required Mr. Moyse to turn over his personal computer to
counsel for forensic imaging of the data stored on it. Before doing
so, however, Mr. Moyse deleted his personal browsing history and
purchased software entitled "Secure Delete", prompting
Catalyst to bring a motion for contempt.
Following Mr. Moyse's success on the contempt motion,
Catalyst appealed the decision to the Ontario Court of Appeal. Mr.
Moyse brought a motion to quash Catalyst's appeal on the ground
that the judgment was interlocutory and, therefore, fell within the
jurisdiction of the Divisional Court.
The issue before the Court of Appeal was whether an order
dismissing a motion for contempt is final or interlocutory. In
support of their positions, the parties both relied on recent
potentially inconsistent decisions from the Court of Appeal:
Simmonds v. Simmonds, 2013 ONCA 479 which held that orders
dismissing contempt motions are interlocutory and Sabourin and
Sun Group of Companies v. Laiken, 2013 ONCA 530 which, while
not directly addressing the issue, was an instance of the Court
hearing an appeal from such an order.
After reviewing each case, Justice Lauwers observed that the
Court's decisions on the final/interlocutory distinction
"have not been the model of clarity" and that "much
ink has been spilled, and court and counsel time wasted in
exploring the nuances" [of that distinction] (11). Ultimately,
however, Justice Lauwers held that the root principle everyone can
and does accept is found in Hendrickson v. Kallio, 
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 applications, but it is
interlocutory if the merits of the case remain to be
On that basis, because the merits of the case remained to be
determined, there could be "no doubt" that an order
dismissing a contempt motion is interlocutory.
In coming to this decision, Justice Lauwers also rejected
Catalyst's argument that the order is final because it
effectively renders Mr. Moyse's conduct in deleting his browser
history res judicata such that it cannot be re-litigated,
even in cross-examination. Rather, Justice Lauwers held that even
though contempt issue cannot be re-litigated, barring some new
revelation, all of the factual issues between the parties can be
fully and exhaustively explored at discovery and at trial.
As a result, the order dismissing the contempt motion fell
within the jurisdiction of the Divisional Court, and Catalyst's
appeal to the Court of Appeal was quashed.
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guide to the subject matter. Specialist advice should be sought
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