Finding Clarity in Appeals – Manitoba Imposes Leave Requirement For Interlocutory Orders

Written by Gerard Kennedy and Eric Epp

The Manitoba Court of Appeal Act has imposed a leave requirement to appeal an interlocutory order made in the Court of King’s Bench as of January 2022.[1] This change hopefully discourages unnecessary litigation by restricting appeals to instances that address an action’s merits, or where appellate intervention is otherwise necessary to prevent an injustice or clarify the law.

The changes to the Court of Appeal Act came through Bill 46 – The Court Practice and Administration Act,in response to members of the judiciary who desired improvement to procedural processes in Manitoba courts.[2] The goals of this act were to modernize the justice system, improve access to justice, and recognize the value of court related services.[3] Specific to the Court of Appeal amendments, the goal was to “streamlin[e] and simplif[y] appeal processes” and “clarify where appeals in certain types of cases should be heard”.[4]

Prior to this change in the law, most other common law provinces (Prince Edward Island being the only exception) restricted the availability of “interlocutory” appeals, essentially in the interests of proportionality: matters that do not resolve a case’s merits are of comparatively less importance and, as such, should require something exceptional to be appealed.

Defining “Interlocutory” and “Final”

Having said that, there remains considerable controversy regarding the definitions of interlocutory and final orders. The interlocutory/final order distinction, to be dramatic, “has been known to drive judges to despair”.[5] The distinction is subtle at times, but the determination has important effects over the types of rights granted to litigants on appeal. Generally, if the merits of the case remain undecided following an order, it will be considered interlocutory; however, if the order finally decides the issue or determines the substantive merits, it will be considered final.[6]

The English roots of what classifies as an interlocutory or final order go back to at least the late nineteenth century when Salaman v Warner held that a decision is final only when the order decides the entire case.[7] However, doubt was cast on this twelve years later when Bozson v Altrincham held that an order is final when it finally disposes of the rights of one of the parties.[8]  This distinction was important because it meant that appeal rights were allowed in cases where previously a determination of finality depended on which way an order was determined.[9] While the Bozson approach felt fair, it was difficult to apply and eventually England endorsed the more predictable Salaman approach through the Access to Justice Act in 1999.[10]

In Canada, the leading case is Hendrickson v. Kallio. In that case, the defendant originally applied for leave to appeal, believing that the order was interlocutory. Upon being denied leave he served a notice of appeal, appearing to now believe the order was a final order which would give him an appeal as of right.[11] In Hendrickson, it was held that an order was interlocutory when “the merits of the case remain to be determined”.[12] This was a similar approach as Salaman, though there have been caveats added.[13] Ultimately, in Canada, when an order plainly disposes of the rights of a party, it is a final order.[14]

The New Law in Manitoba

While the new provisions introduced by Bill 46 spell out when an appeal should be by right or by leave, they do not provide definitions for when an appeal is interlocutory or final. In British Columbia, a solution to this problem was attempted by codifying when leave to appeal is required.[15] While there was promise to this approach, the codified list clearly missed certain types of interlocutory orders where one would have thought, bearing in mind the purpose of the interlocutory/final distinction, leave to appeal would be required.[16]

As it stands, the approach in Manitoba is that final orders are not limited to orders that dispose entirely of the litigation. This distinction was explored in Nguyen, a Manitoba Court of Appeal case decided following the introduction of the new legislation. In Nguyen, Winnipeg argued Nguyen’s negligence action was statutorily barred and asked for summary judgment.[17] This was denied. On appeal, the Court of Appeal held that dismissing the motion for summary judgment and deciding that the limitation defence could not be raised determined a substantive right of the City. Therefore, while the order was not dispositive of the entirety of the matter, since the now barred limitation defence could have decided the matter entirely, the order was held to be final. Accordingly, there was an appeal as of right.[18]

Access to Justice Implications

Despite the persistent uncertainty of what is final or interlocutory, there are important access to justice considerations affected by Bill 46. In civil litigation, important characteristics that reflect access to justice concerns are: “timeliness, minimal financial expense, and simplicity”.[19]  Preventing interlocutory appeals—unless necessary to clarify the law or correct a clear and consequential injustice—thus accords with access to justice.

At the same time, if parties are unsure whether an order is interlocutory or final, they are forced to go through the leave process, occasionally discovering, as was the case in Nguyen, that an order was final, and the leave process was unnecessary. This debate of whether an order is interlocutory or final raises litigation costs and makes appeal courts less accessible.

Access to justice must be used to interpret all legislation and court practices. Appeals are no different. Appeals provide access to justice by providing an avenue to right clear wrongs, correct substantive injustices, and give clarity on uncertain areas of law so future litigants may plan submissions accordingly.[20] The new The Court of Appeal Act provisions create a greater sense of purpose around appeal rights in Manitoba. It may remain to be seen how great the effect of the changes is, but the goal of preventing needless interlocutory appeals is a laudable one.

[1] Manitoba Court of Appeal, Notice, “Re Leave Required for Most Interlocutory Appeals” (1 October 2021).

[2] “Bill 46, The Court Practice and Administration Act (Various Acts Amended), 1st reading, Legislative Assembly of Manitoba, 75, No 12 (2 November 2020) at 1350 (Hon Cliff Cullen).

[3] Legislative Assembly of Manitoba, The Standing Committee on Justice, (26 April 2021) at 1820 (Hon Cameron Friesen).

[4] Ibid.

[5] Nguyen v Winnipeg (City of), 2022 MBCA 33 at para 2 [Nguyen].

[6] Brooke MacKenzie, “Rules of Civil Procedure Chapters, Appeals, Rule 62 – Appeals from Interlocutory Orders and Other Appeals to a Judge” in Noel Semple, ed, Civil Procedure and Practice in Ontario, (Canadian Legal Information Institute, 2021 CanLIIDocs 2056) online: <> [].

[7] Gerard Kennedy, “Civil Appeals in Ontario: How the Interlocutory/Final Distinction Became So Complicated and the Case for a Simple Solution?” (2020) 45:2 Queen’s LJ 243 at 252.

[8] Ibid.

[9] Ibid.

[10] Ibid at 252-253

[11] Hendrickson v Kallio, 1932 CanLII 123 at 677, [1932] OR 675.

[12] Ibid at 679.

[13] Kennedy, supra note 7 at 254.

[14] Ibid at 255, citing John Sopinka, Mark A Gelowitz & W David Rankin, Sopinka and Gelowitz on the Conduct of an Appeal, 4th ed (Toronto: LexisNexis Canada, 2018) at § 1.1.

[15] Kennedy, supra note 7 at 270.

[16] Ibid at 273-274.

[17] Nguyen, supra note 5 at para 3.

[18] Ibid at paras 23-24.

[19] Kennedy, supra note 7 at 256.

[20] Ibid.

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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