“The responding party asked the motion judge to recuse himself from the determination of the costs issue on the basis that there was a reasonable apprehension of bias arising from some comments that the motion judge had made respecting the responding party in the course of his reasons that led to the January 15 Direction. The motion judge refused to recuse himself: Fontaine v. Canada (Attorney General), 2018 ONSC 4182 (CanLII)…
It is the recusal order that forms the subject matter of the appeal to this court. The moving party contends that the recusal order is an interlocutory order and therefore any appeal lies to the Divisional Court with leave: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b). The responding party contends that the recusal order is final as it finally decides that the motion judge would decide the costs issue; thus the appeal lies to this court: Courts of Justice Act, s. 6(1)(b).
One of the leading cases on the difference between final and interlocutory orders is Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.). In that decision, Middleton J.A. said, at p. 678:
The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the applications?, but it is interlocutory if the merits of the case remain to be determined.
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None of this changes the fact that the recusal order does not finally determine any substantive rights of the parties nor does it determine a substantive claim or defence in the matter before the court. It is thus an interlocutory order that may only be appealed to the Divisional Court, with leave.”