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
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.
The issue before the Court of Appeal was whether or not Harper
J's March 9, 2015 decision was a final or interlocutory
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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