What Constitutes a Final Decision?

Appeals of most regulatory decisions are only available if the decision is final. In civil cases, there has been much litigation about what constitutes a final decision for the purpose of determining the appropriate appeal route. In that context, a decision will be considered final if the ruling deprives a party of a “substantive right which could be determinative of the entire action”.

In The Law Society of Upper Canada v. Piersanti, 2018 ONSC 640, http://canlii.ca/t/hqjnd the disciplinary tribunal made an evidentiary ruling accepting the findings of fact of a trial judge in a civil case as binding on the practitioner. The tribunal would not allow the practitioner to challenge (or re-litigate) those findings of fact. The practitioner attempted to appeal that ruling, both internally to an appeal committee and in the courts. The tribunal had not yet made a decision with respect to the alleged misconduct or penalty.

The Divisional Court declined to hear the appeal and held that the test for finality used in civil cases did not apply. The Court indicated that in regulatory proceedings there is a high value in allowing the proceedings to be completed before appeals are considered. Given the public protection mandate of regulators, their non-legal structure and the practical problems created by interrupting the process, the Court determined that in most cases the hearing process should run its complete course before there is recourse to the courts. A final decision in regulatory cases is one in which all matters have been determined. Then, if necessary, a party can challenge the entire process in one appeal.

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