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We had previously written about a case in which the termination of Ontario’s moratorium on residential evictions was challenged.

In that case, the Advocacy Centre for Tenants Ontario (“ACTO”) and two residential tenants brought a motion for an order setting aside Chief Justice Geoffrey B. Morawetz’s order dated July 6, 2020 which varied his order dated March 19, 2020. 

The March 19, 2020 order had effectively placed a moratorium on residential evictions in Ontario. As a result of the order made on July 6, 2020, the moratorium ended July 31, 2020. 

ACTO sought to reinstate the moratorium by obtaining an interim stay of the July 6, 2020 order.

While ACTO and the two residential tenants argued that it was premature to lift the moratorium on evictions and that the Chief Justice was not told of the continuing risks to individuals facing eviction and to others in the community, the court refused the motion. 

Ultimately, the court found that the ACTO and two tenants’concerns were not properly directed at the Chief Justice’s order re-opening court enforcement services. The court concluded that while there may be individual concerns for individual eviction proceedings and there may be systemic concerns that are properly addressed with the government, it did not find any issue raised that could properly lead to a stay of the Chief Justice’s order.

ACTO and the two tenants then appealed the decision, but the Attorney General for Ontario moved for an order quashing the appeal on the basis that the order appealed from was interlocutory and the Court of Appeal lacked jurisdiction. 

In response, the ACTO and the tenants submitted that the order under appeal finally determined the issues raised and was thus final. They argued that, while the order appeared interlocutory on its face, the exceptional nature of the order had to be considered because: (i) it had effectively determined that their case was not justiciable; and (ii) as the eviction orders had been enforced, the two tenants would have no further interest in the action. In other words, they claimed that the motion judge finally determined the issue of jurisdiction and disposed of the substantive rights of the individual tenants.

Court of Appeal Refuses to Hear Appeal

The court began by explaining that the general principle is that “an order granting a stay is final, but an order refusing one is interlocutory”and an order is interlocutory if the merits of the case remain to be determined. 

The court then noted that the motion judge had specifically stated that he was “not deciding the motion on its merits”. 

The court ultimately found that the order under appeal was in fact interlocutory, and the Court of Appeal therefore had no jurisdiction to hear the appeal.

As a result, the appeal was quashed. 

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