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Appeals - Abandonment [R61.14]. Aviva Insurance Company of Canada v. 8262900 Canada Inc. (CarePartners/Community Nursing Services Foundation)
In Aviva Insurance Company of Canada v. 8262900 Canada Inc. (CarePartners/Community Nursing Services Foundation) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appellate motion (by an insurer), here seeking "an order setting aside its notice of abandonment of appeal" and ancillary amendment and time extension orders:[16] Turning to the applicable law, r. 61.14(3) describes the effect of abandonment. Simply stated, “the appeal or cross-appeal is at an end”. The rule is silent on withdrawing or setting aside a notice of abandonment.
[17] There is limited appellate case law in Ontario on the subject of setting aside or withdrawing a notice of abandonment in civil cases. In Hermanns v. Ingle (2002), 2002 CanLII 41669 (ON CA), 158 O.A.C. 21 (Ont. C.A.), at para. 11, this court granted an order setting aside a notice of abandonment, but without elaboration.
[18] In Re Rogers, [1955] O.J. No. 372, the Supreme Court of Ontario – Appellate Division held that it had inherent jurisdiction to exercise its discretion to order that an appellant be permitted to proceed with his appeal as though the notice of abandonment had not been served: at para. 10. Without engaging in a deep discussion of the facts of that case, suffice to say they were unusual. The application had not been finally disposed of through the abandonment as other interested parties were pursuing their appeals of the impugned judgment; the appeal was not frivolous; only three days had elapsed between the service of the notice of abandonment and service of a notice of motion countermanding it; some parties had not been served with the notice of abandonment; and none of the parties had altered their positions. The court described the case as exceptional.
[19] Recently, in Sherwood v. Cinnabar Brown Holdings Ltd., 2021 BCCA 88, Fenlon J.A. of the B.C. Court of Appeal had occasion to consider a motion to set aside a notice of abandonment of an appeal in a multiparty proceeding. Drawing in part on Philipos v. Canada (Attorney General), 2016 FCA 79, [2016] 4 F.C.R. 268, where Stratas J.A. was faced with a motion by an appellant to resurrect and continue a discontinued appeal, Fenlon J.A. considered the following factors: the presence of exceptional circumstances warranting a set aside order; prejudice should the notice of abandonment be set aside; the merits of the appeal sought to be revived; and the interests of justice. Examples of exceptional circumstances included: situations in which a party discontinues the wrong action or appeal; a misapprehension of instructions by the lawyer; abandonment procured by fraud; lack of mental capacity in the party abandoning; and an abandonment filed as part of a settlement that was subsequently repudiated. At para. 12, Fenlon J.A. wrote:In short, there must be inadvertence, mistake, or misapprehension before this Court should exercise its discretion to set aside a notice of abandonment. Strategic decisions to abandon an appeal to save costs or because of the view held about the likelihood of success do not amount to exceptional circumstances—they are, to the contrary, the ordinary reasons appeals are abandoned. As Justice Esson concluded in Adam and Adam v. Insurance Corporation of British Columbia et. al. (1985), 1985 CanLII 584 (BC CA), 66 B.C.L.R. 164 at 171 (C.A.), after reviewing authorities to determine the basis upon which the discretionary power to set aside a notice of discontinuance of an action should be exercised:... it is my view that where, as here, the grounds are simply a change of heart, based on some greater consideration of the law or the facts as to the possibility of success, that is not enough. [20] I am satisfied that I have jurisdiction to decide Aviva’s motion. Indeed, no one suggested otherwise. I must then consider whether to exercise my discretion to grant the relief requested. For the following reasons, I have decided to dismiss Aviva’s motion.
[21] As Stratas J.A. stated at para. 17 of Philipos, “Finality matters. ... If expectations of finality engendered by discontinuance are not enforced strictly and discontinuances can be easily reversed, there will be no economy. ... Discontinuance would become nothing more than a form of suspending proceedings much akin to a stay.”
[22] To grant the relief requested by Aviva runs the risk of establishing a problematic precedent and, in any event, I am not satisfied that it is merited.
[23] Although it is the case that this court has repeatedly stated that counsel’s inadvertence should not prejudice a client’s cause (see for example Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, at para. 6), I am not persuaded that Aviva’s notice of abandonment was filed based on inadvertence, mistake, or misapprehension. Both Aviva’s counsel on the appeal and its claims analyst acknowledged in their cross-examinations that there was nothing accidental or inadvertent about the abandonment of the appeal. The appeal was abandoned because it was thought that the application judge’s bodily injury claim finding would not likely be overturned on appeal and in any event, the recovery would not be substantial.
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