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Appeals - Practice Where Appeal and JR Combined. Casa Loma Residents Association v. 555 Davenport Holdings Ltd.
In Casa Loma Residents Association v. 555 Davenport Holdings Ltd. (Div Court, 2024) the Divisional Court held a case conference where the appellant/applicant filed for both an appeal (actually it was a motion for leave to appeal) [under s.24(1) of the Ontario Land Tribunal Act, 2021] and a JR (under the relatively new doctrine of Yatar), here of an OLT decision.
Here the court considers some of the practicalities of a dual Yatar proceeding:[1] I am asked to schedule an appeal and an application for judicial review from a single decision of the Ontario Land Tribunal. The recent decision of the Supreme Court of Canada in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 (CanLII), may make both proceedings viable.
[2] In the normal course, where an appeal and a judicial review proceeding both lie from the same decision, it is likely to be most efficient to hear both proceedings together. Time will tell how efficiently the court will be able to tease out the different standards of review on different issues presented in those cases.
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[23] The developer submits that to keep the leave to appeal motion separate form the appeal, the court could order that the leave motion proceed first and at the same time as the application for judicial review. Then, if leave to appeal is granted, a later hearing could be held strictly limited to the issues of law relied upon by the applicant as its grounds for appeal.
[24] While I agree with Mr. Dunn, for the developer, that the leave motion should be kept distinct form the appeal itself, linking it to the judicial review application leads only to confusion in my view. If leave to appeal is granted, then the appeal and the judicial review should be conducted together. The issues of law and mixed fact and law overlap. The remedies in an appeal and a judicial review may or may not be different. Keeping the two substantive decisions together ensures that there is one hearing into all the issues concerning the merits of the board’s decision and protects against inconsistent holdings and remedies.
[25] The bigger issue for me is whether to join the leave motion to the main hearings and do everything all at once. This will certainly be the most efficient manner of proceeding. But I agree with Mr. Dunn’s submission that joining leave with an appeal essentially undermines the leave decision. It is always possible for a panel to hear the merits and then to deny leave to appeal. But if the panel is persuaded on the merits, how likely is it to say that leave is denied even if leave would likely have been denied if heard first? There are many cases of leave to appeal being denied in this court where judges may question the correctness of the underlying decision. The applicable tests for leave to appeal anticipate this very likelihood and focus on other issues like conflicting decisions and public importance for example. A leave to appeal requirement is made to weed out cases which could be overruled on appeal but which should not be heard for other reasons.
[26] Yatar is still new. We do not have much jurisprudence yet on the relationship between appeals and applications for judicial review on the same tribunal decision. While Yatar seems to have allowed judicial review proceedings relating to issues of fact, for example, Vavilov suggests that such cases will be limited. Whether this case presents an example where an appeal will preclude judicial review or not is an open question. I am not trying to prevent the hearing of any issues in making scheduling decisions.
[27] I do think it is important to give effect to the legislative deference implicit in the leave to appeal requirement. Moreover, a decision by this tribunal that a proceeding before it is not, “based on a valid land use planning ground,” is, “not based on demonstrably substantive evidence,” and has, “no reasonable prosect of success,” is hardly a poster child for leave to appeal. That does not mean that the applicants will not be able to show serious concerns with the merits and that there is sufficient importance to this use of the board’s summary dismissal power to warrant leave to appeal. But I am convinced that there is independent content to the leave to appeal requirement in this case.
[28] If leave to appeal is granted, a comprehensive hearing on all substantive and remedial issues will be held before a panel. If leave to appeal is not granted, the remaining judicial review proceeding will be much simplified.
[29] I do not rule out the use of combined hearings of motions for leave to appeal and the appeal in future cases. This is the norm, for example, in the Superior Court of Justice on appeals from commercial arbitration where leave to appeal is required. However, before I simply opt for the most affordable route, I need to be satisfied that the combined hearing still does justice to the legislative deference afforded to this particular tribunal. It seems to me that once we have developed a body of jurisprudence concerning combining appeals with judicial review proceedings under Yatar, this issue may be ripe for review.
[30] There are many dates available for a two-hour motion for leave to appeal before a single judge in June. There are also many dates for a one-half day application before a panel in September. Counsel are directed to send an email to the Divisional Court office to obtain agreeable dates and then to agree on a schedule fo exchanging materials on both proceedings. Some modest amount of time will need to be left in the schedule to allow the judge who hears the leave to appeal motion to make a decision. . Yatar v. TD Insurance Meloche Monnex
In Yatar v. TD Insurance Meloche Monnex (Ont CA, 2022) the Court of Appeal set out valuable practice directions regarding when both appeal and judicial review were to be advanced to the Divisional Court together:(3) Concurrent appeal and judicial review proceedings
[53] Before concluding, I will address one other issue that is raised by the parties and that is the reference by the Divisional Court to what it described as “the systemic difficulties associated with duplicative judicial reviews and appeals.” The Divisional Court identified these difficulties as one of the factors weighing against considering the judicial review application.
[54] I have already said that judicial review is available in these cases. As I have also said, there is a difference between the availability of judicial review and whether such relief will be granted. However, the fact that judicial review is available does raise the practical problem of how that application should be dealt with when there is also a statutory right of appeal. On that issue, I make two comments.
[55] First, if a party intends to utilize both their right of appeal and their right to seek judicial review, then those proceedings must be brought together. Put simply, a party cannot first exercise their right of appeal and then, if unsuccessful, bring a judicial review application. “Litigation is not to be conducted by instalment”: Shearer v. Oz, 2021 ONSC 7844, at para. 5.
[56] Second, once both proceedings are commenced, a motion must be brought for the two proceedings to be heard together with a single appeal book/application record and factum covering both proceedings. It would, of course, be open to the Divisional Court to adopt a Practice Direction that directs that this is the process to be followed, in an effort to avoid such motions. The Practice Direction could also address any issues with differing time periods for filing and like matters. Failing that, the time and expense of such a motion could be greatly reduced if counsel were to agree on the terms of an appropriate order with a further agreement that the motion could then be dealt with in writing.
[57] Simply put, the difficulties that the Divisional Court identified with concurrent proceedings can be minimized through appropriate Practice Directions and/or the co-operation of counsel.
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