Appealing an interlocutory order under the Construction Act.

Date: April 2022

One of the lesser-known changes to the Construction Act overshadowed by the introduction of prompt payment and adjudication concerns the ability to appeal an interlocutory order.

Previously, and in recognition of the need to deal with matters expeditiously, interlocutory orders made by the court were not appealableā€¦full stop.

However, under the new Construction Act, interlocutory orders can be made with leave of the Divisional Court.

Examples of interlocutory orders requiring leave to appeal include:

  • An order for a timetable/schedule, discovery, and/or documentary production.
  • An order dismissing a motion for an order discharging a construction lien.
  • An order denying consent to bring a motion for security for costs.

Example of final orders that can be appealed to the Divisional Court without leave, include:

  • An order declaring that the mortgage of a mortgagee had priority over a lien claimant’s lien.

An order under s.44(2) of the Construction Act, reducing the amount of security to be posted for a lien.

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