Fact that, had judge reached opposite conclusion, resulting order would have been final did not dictate that order given was final

Plaintiffs brought medical negligence action against defendants. Jury found in favour of plaintiffs, however there was issue over answers jury had provided to questions asked. Trial judge decided that she would not enter judgment in accordance with jury’s verdict and that new trial was necessary because answers of jury on causation were fatally flawed. Plaintiffs appealed. Defendants brought motion to quash plaintiffs’ appeal. Motion granted. Matter was transferred to Divisional Court for purpose of permitted defendants to bring motion for leave to appeal. Order in question was interlocutory. Order did not decide any substantive right between parties, rather it directed that new trial be held where those substantive rights will be determined. Plaintiffs were not being deprived of right of review. Fact that, had judge reached opposite conclusion, resulting order would have been final did not dictate that order given was final.

Cheung v. Samra (2018), 2018 CarswellOnt 19188, 2018 ONCA 923, David Watt J.A., B.W. Miller J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.).