Are Rulings or Interlocutory Decisions Appealable?

Are Rulings or Interlocutory Decisions Appealable?

For that answer let us examine the case of Mary and David Goodine Dairy Farm v. New Brunswick Milk Marketing Board, 2002 NBCA 38 (CanLII), <http://canlii.ca/t/5k9m>

[4]                                                              In summary, Chief Justice Hughes held that rulings made at trial pertaining to the admissibility of evidence are not appealable. However, they remain as grounds of appeal. In support of that position Chief Justice Hughes relied on National Indian Brotherhood et al. v. Juneau et al. [No. 2], [1971] F.C. 73 (C.A.) wherein it was doubted that the right to appeal a decision under the Federal Court Act would include the following: (a) decisions as to the date of hearings; (b) decisions on requests for adjournments; (c) decisions concerning the order in which parties will be heard; (d) decisions concerning admissibility of evidence; (e) decisions on objections to questions of witnesses; and (f) decisions on whether to permit written or oral arguments.

[5]                                                              I pause here to note that The New Brunswick Telephone Company, Limited v. John Maryon International Limited et al. was quoted with approval in Children’s Aid Society of Halifax v. L.H. reflex, (1989), 90 N.S.R. (2d) 44 (C.A.) and Rahmatian v. HFH Video Biz, Inc. 1991 CanLII 1453 (BC CA), (1991), 79 D.L.R. (4^th) 763 (C.A.). In the Nova Scotia case, the appeal was tied to a trial judge’s ruling respecting the admissibility of evidence. In the British Columbia case, the trial judge, Chief Justice McEachern, dismissed the defendant’s motion for non-suit made at the end of the plaintiff’s case. Chief Justice McEachern held that a motion for non-suit is a ruling on evidence that is not appealable until after completion of the trial. In effect, a motion of non-suit is a request to rule on the sufficiency of the plaintiff’s evidence and, therefore, falls within the principle established in John Maryon.

[6]                                                              The appealability of rulings made during the course of legal proceedings was once again raised in this Court in Belliveau (Bankrupt), Re 2001 CanLII 25709 (NB CA), (2001), 240 N.B.R (2d) 139 (C.A.). The applicant sought leave to appeal the trial judge’s ruling with respect to the admissibility of certain testimony. The leave application was dismissed. Citing The New Brunswick Telephone Company, Limited v. John Maryon International Limited et al., Justice Drapeau concluded at 144:

[11]  The opening words of s. 193 make it clear that only an "order or decision" is appealable to this Court. There is no authority for the proposition that a ruling on the admissibility of evidence made in the course of a hearing or a trial can be appealed as an order or decision separate from the court's final judgment. This Court has held that such a ruling is not an "order or decision" from which an appeal may be taken under the authority of s. 8(3) of the Judicature Act, R.S.N.B. 1973, c. J-2. See New Brunswick Telephone Co. v. John Maryon International Ltd. et al. (1980), 32 N.B.R. (2d) 133; 78 A.P.R. 133 (C.A.). A ruling on evidentiary matters is ordinarily subsumed in the final judgment and may be challenged through an appeal from that judgment. In the context of such an appeal, the ruling may constitute a ground for setting aside the final judgment. There is no principled basis for a deviation from that time-honoured approach in the case at hand.

[7]                                                              In summary, rulings made during the course of a trial respecting the admissibility or sufficiency of evidence are not regarded as appealable decisions. Rather, they constitute grounds of appeal once judgment is entered. Within this framework, I fail to see how a valid analogy can be drawn between a ruling respecting the admissibility of evidence and one tied to a request that a tribunal recuse itself prior to commencement of the hearing on the merits. With respect to admissibility rulings, it is clear that there are pressing policy reasons underscoring the unwillingness of courts to entertain interlocutory appeals. As a practical matter, trials would become disjointed and prolonged if parties were entitled to pursue interlocutory appeals with respect to any of the wide-ranging rulings that are inevitably made during the course of a trial. I say this because trial judges might feel compelled to grant adjournments if such rulings were appealable, either as of right or with leave.

[8]                                                              In my opinion, in this case an unsuccessful request or motion for recusal, made prior to the commencement of tribunal proceedings is a decision amenable to an interlocutory appeal, subject to any statutory restriction that dictates otherwise.

[9]                                                              This leads me to the applicant’s second argument. The Board argues that if the Commission’s recusal ruling constitutes an appealable decision, it is an interlocutory one for which leave must be obtained: see s. 8(3) of the Judicature Act and Rules 62.02 and 62.03 of the Rules of Court.

[10]                                                        In my view, a more basic question arises. Does the right of appeal to this Court prescribed by s. 71(1) of the Natural Products Act apply only to final decisions or does it apply equally to interlocutory decisions? I agree that a recusal ruling is an interlocutory decision. But I am also of the view that, when read contextually, s. 71(1) implicitly contemplates the right to appeal final decisions only. It follows that the Board’s motion to quash the Notice of Appeal must be granted. This portion of my analysis begins with the question of whether a recusal ruling is an interlocutory or final decision.

[11]                                                        To me the answer is self-evident once it is accepted that negative rulings can be made a ground of appeal, assuming any decision on the merits is unfavourable to an applicant. A finding that a negative recusal ruling is interlocutory is certainly consistent with the jurisprudence of this Court. Most recently in Doug’s Recreation Centre Ltd. et al. v. Polaris Industries Ltd. 2001 CanLII 19446 (NB CA), (2001), 237 N.B.R. (2d) 190 (C.A.) it was observed that the test usually applied is that stated by Stratton J.A. in Bourque v. Province of New Brunswick (1982), 41 N.B.R. (2d) 129 (C.A.) at 133-34:

In my opinion, the question whether an order or decision is interlocutory or final should be determined by looking at the order or decision itself, and its character is not affected by the nature of the order or decision which could have been made had a different result been reached. If the nature of the order or decision as made finally disposes of, or substantially decides the rights of the parties, it ought to be treated as a final order or decision. If it does not, and the merits of the case remain to be determined, it is an interlocutory order or decision.

[12]                                                        Accepting that a negative recusal decision is interlocutory in nature, I turn to whether an appeal under s. 71(1) of the Natural Products Act is limited to those decisions of the Commission that qualify as final; that is to say decisions that rule on the merits of an appeal from the Board.

[14]                                                        It might be argued that s. 71(7) undermines my position. That provision states that, except as otherwise provided in the Act, the Rules of Court governing appeals from the Queen’s Bench to this Court are applicable. Of the many Rules relevant to appeals to this Court is Rule 62.02. That Rule dictates that leave is required to appeal any interlocutory order or decision. However, it seems to me that before s. 71(7) comes into play the interpretative issue surrounding the meaning of “any decision” as found in s. 71(1) must be resolved. Simply stated, if the decision at quo is not appealable, the Rules of Court dealing with interlocutory matters do not come into play: see K.C. v. New Brunswick (Minister of Health and Community Services) 1998 CanLII 17954 (NB CA), (1998), 203 N.B.R. (2d) 88 (C.A.) where a similar line of reasoning was adopted.