Canada: Law Society Of Upper Canada v. Kivisto: Final v. Interlocutory Analysis Varies Between Civil And Regulatory Proceedings

In its decision in Law Society of Upper Canada v. Kivisto, 2016 ONSC 1400 the Ontario Divisional Court explained that because of the differences between a regulatory proceeding and a civil proceeding, the distinction between final and interlocutory orders will vary in these two contexts. The Court also confirmed that the distinction between final and interlocutory orders has a different dimension when the appeal is from an appellate decision rather than a decision of first instance.

In this case, the Divisional Court considered the Law Society of Upper Canada's motion to dismiss Mr. Kivisto's notice of appeal from an order of the Law Society Appeal Division. Section 49.38 of the Law Society Act, R.S.O. 1990, c.L.8 provides that an appeal lies to the Ontario Divisional Court from a final decision or order of the Law Society of Upper Canada Appeal Panel. At the outset of its decision, the Court relied on Opara v. Law Society of Upper Canada, 2015 ONSC 3348 (Div. Ct.) to briefly confirm that the distinction between final and interlocutory orders has a different dimension when the appeal is from an appellate decision rather than a decision of first instance.

Ultimately, the Court ruled that the Appeal Panel's decision was not a final decision for two reasons. First, the Appeal Panel's decision did not deprive Mr. Kivisto of a substantive right that could determine the entire proceeding. Based on the Court's review of the applicable case law, this meant that and the decision was therefore not a "final" decision. Second, the Court went on to state that even if its interpretation of the jurisprudence was incorrect, the case law it had reviewed regarding the distinction between final and interlocutory orders arose pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c.43. The Court went on to note that a "civil proceeding, however, is quite different than a regulatory proceeding and specifically a conduct application under the Act." The Court concluded that "final" decision under the Act meant determination of professional misconduct or, in this case, a determination of conduct unbecoming. As the Appeal Panel's decision was not a final determination on this issue, it was not a final decision within the meaning of the Act and there was therefore no right of appeal to the Divisional Court.

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