Under the Construction Act there is no right of appeal of an interlocutory without leave. Under the old legislation, the Construction Lien Act, there was a categorical prohibition of appealing an interlocutory order.
In a recent case, one side banked on the fact a Court would accept that the order they were appealing from was a final order.
The Defendant sought to cross-examine on the lien. The corporate Plaintiff produced a witness to act as the representative of the corporation. The witness was not a party to the litigation. There was a cross-examination on the lien and there was a motion was brought and further crosses on the affidavit.
The witness provided refusals. The Defendants challenged the refusals.
Justice Gibson agreed with the Defendants and granted the production order of the witness.
The Plaintiff appealed the decision and argued it was a final order because the witness was not a party to the proceedings and therefore the order finally disposes of the only issue in which she is involved, personally, in this case.
The Defendant brought a motion to quash the appeal.
The Court agreed. The Court found that generally production orders are interlocutory and there is no appeal available under the Construction Lien Act. However, where a production or disclosure order is directed against a “stranger to the litigation”, the order is final, in respect to that person.
The Court found that the witness was not a stranger to the litigation as she was produced as a witness for the corporation. She was produced because she had knowledge of the corporation’s affairs.
She was not a “stranger” to the litigation and nor was the appeal brought on her behalf but on behalf of the Plaintiff. If she was stranger, then “different considerations” apply.
The Court found though the order was directed to the witness, it was in her capacity as a representative of and witness for the Plaintiff. The Court further held “in being tendered as a witness by the plaintiff and in providing an affidavit, she has put herself before the court as a witness and must abide by the court’s orders.”
The Court concluded that the order interlocutory and there was no appeal right. The appeal was successfully quashed.
The ‘new’ Construction Act permits appeal on interlocutory orders with leave. Therefore, some of the analysis above may be limited to the facts of the case above and not applied generally. It would have been interesting if the witness brought the appeal as a stranger to the litigation but as the Court stated she would have exposed herself to costs personally. A risk the witness would not want to take.