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Appeals - Combining Appeals From Different Courts (2). Carcillo v. Ontario Major Junior Hockey League
In Carcillo v. Ontario Major Junior Hockey League (Ont CA, 2024) the Divisional Court dismissed a motion to quash in a class action.
Here the court considered the merging of appeals from two courts [CJA s.6(2)]:[33] In the normal course, where an appeal lies to the Divisional Court and leave is required from that court, the appellant must first obtain leave from the Divisional Court before seeking to combine the appeal that lies to the Divisional Court with an appeal that lies to this court as of right: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.), at paras. 15-16; Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, 123 O.R. (3d) 120, at para. 55; Brown v. Hanley, 2019 ONCA 395, at paras. 19 and 20.
[34] However, Section 6(2) of the Courts of Justice Act provides that,(2) The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal. [35] Thus if the interrelated final and interlocutory orders are “so interrelated that leave would inevitably have been granted on the interlocutory issue”, this court can assume jurisdiction over the appeal under s. 6(2) even if leave has not been sought from the Divisional Court: P1 v. XYZ School, 2021 ONCA 901, 160 O.R. (3d) 445, at para 37, citing Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520, at para 9.
[36] In Lax for example, this court held that,Although the motion for summary judgment was dismissed, allowing the case to proceed to trial, the motion judge finally disposed of the issue whether the limitation period is 20 years or six years, thus removing the limitation period as a defence. The order is therefore a final order on a question of law and the appeal is properly brought to this court. Although the second issue would, if brought as a stand-alone appeal to the Divisional Court, require leave of that court, because the two issues are so interrelated, we were able to proceed to hear the two appeals together in accordance with s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C-43 , on the basis that once the first issue was before this court, leave would inevitably have been granted on the second. [Citations removed, Emphasis added.] [37] Similarly, in 2099082 Ontario Limited v. Varcon Construction Corporation, 2020 ONCA 202, 97 C.L.R. (4th) 26, this court held allowed appeals from both the final and interlocutory aspects of the motion judge’s order as they were so interrelated that “once the first issue was before the court, leave would inevitably have been granted on the second.”: at para. 17. See also Martin v. 11037315 Canada Inc. 2021 ONCA 246 at paras 11-17; Cooper v. The Laundry Lounge, Inc., 2020 ONCA 166 at para. 2; and Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at paras. 25-26.
[38] I agree that the Transition Order has both final and interlocutory aspects. However, the focus of the appeal is on the aspects of the Transition order that direct the Responding Parties to abandon their appeal of the Certification Order if no party appeals the Transition Order; direct the recommencement of limitations periods; and dismiss the Class Proceeding by a certain date prescribed by the Section 7 Plan. Those aspects are the ones that are closely interrelated with the Certification and Dismissal appeals, and hearing this appeal with the appeals of the Certification and Dismissal orders would promote, not take away from, the time and cost-effective resolution of disputes. As such, this case is distinguishable from this court’s recent decision in Athanassiades v. Rogers Communications Canada Inc., 2024 ONCA 497, where the focus of the appeal was on the interlocutory aspects of the decision at issue, hearing the appeal of the final aspects only was therefore impracticable, and would lead to “an unnecessary and wasteful fragmentation of summary judgment proceedings that are designed to resolve disputes in a timely and cost-effective manner.”: Athanassiades, at para. 16. . Athanassiades v. Rogers Communications Canada Inc.
In Athanassiades v. Rogers Communications Canada Inc. (Ont CA, 2024) the Ontario Court of Appeal dismisses an action against Rogers Communication for "damages allegedly arising from Rogers’s failure to provide him with internet service and its subsequent collection attempts" under causes of action: "1) spoliation, 2) intentional infliction of mental suffering, 3) defamation and 4) breach of contract." The defendants responded with a summary judgment motion, which resulted in two causes of action being dismissed (which were final judgments) and an order for a 'mini-trial' (an interlocutory order, here under R20.04(2.2)). The plaintiff then appealed to the Court of Appeal before the mini-trial was conducted. The court's legal officer then raised a concern about 'bifurcation' (which I interpret as a concern about 'multiplicity' [CJA s.138]).
The court cites the appellant's 'appeal route' position [CJA 6(1)(b) and 6(2)] in this unusual summary judgment context, as follows:[8] The only part of the notice of appeal that explicitly differentiates between the different aspects of the Order is in the section dealing with this court’s jurisdiction. There, the appellant states that the court has jurisdiction over the appeal based on s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, because the dismissal of the claims for intentional infliction of mental suffering and spoliation are final orders. He also relies on s. 6(2) of the Courts of Justice Act to explain why this court can hear the appeal as a whole.
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C. Analysis
[10] Section 6 of the Courts of Justice Act establishes this court’s jurisdiction. Pursuant to s. 6(1)(b), the court has jurisdiction to hear appeals from final orders, unless the final order falls within the Divisional Court’s monetary jurisdiction of $50,000 or less, or the appeal otherwise lies to the Divisional Court by statute. Pursuant to s. 19(1)(b) of the Courts of Justice Act, appeals from interlocutory orders lie to the Divisional Court, with leave of that court. Section 6(2) of the Courts of Justice Act allows this court to hear combined appeals that fall within the court’s jurisdiction and the jurisdiction of the Divisional Court:The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal. [11] This appeal raises unusual jurisdictional and procedural concerns. There is no doubt that the aspects of the Order dismissing the claims for spoliation and intentional infliction of mental suffering are final. However, these orders were made in the context of a motion for summary judgment that has not yet been completed. Indeed, the mini-trial dealing with the claims for defamation and breach of contract has not yet taken place. The motion judge’s order that these issues be dealt with by way of a mini-trial is interlocutory. Therefore, the proposed appeal arises from a mix of final and interlocutory orders, in circumstances where the motion for summary judgment, which was meant to deal with all four causes of action, has not been completed.
[12] This raises three related concerns that led to the decision to dismiss the appeal.
[13] The first concern is jurisdictional. This court does not have jurisdiction to hear the interlocutory aspects of the Order, absent an order granting leave to appeal from the Divisional Court. Mr. Athanassiades relies on s. 6(2) of the Courts of Justice Act as authority for this court to hear the appeal. However, this court has established that, where an appeal lies to the Divisional Court and leave is required from that court, in the normal course, the appellant must first obtain leave from the Divisional Court before seeking to combine an appeal that lies to the Divisional Court with an appeal that lies to this court as of right: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.), at paras. 15-16; Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, 123 O.R. (3d) 120, at para. 55; Brown v. Hanley, 2019 ONCA 395, at paras. 19 and 20. In some exceptional cases, where an appellant has failed to obtain leave from the Divisional Court, this court has granted leave as part of the appeal: Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.), at para. 9; Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at paras. 25-26, leave to appeal refused, [2017] S.C.C.A. No. 289; P1 v. XYZ School, 2021 ONCA 901, 160 O.R. (3d) 445, at paras. 37-39. However, these are exceptional cases where this court has found that leave would inevitably have been granted because the final issues that were decided are so intertwined with the interlocutory issues raised on appeal. This is not such a case. On the contrary, as discussed below, the focus of the appeal is on the interlocutory aspects of the decision and not on the final aspects.
[14] The second concern relates to the manner in which Mr. Athanassiades has framed his appeal. In theory, despite the fact that this court does not have jurisdiction over the interlocutory aspects of the appeal, we could proceed to hear an appeal from the aspects of the Order that are final. However, in the circumstances of this case, such an approach is impracticable because the crux of Mr. Athanassiades’s complaint is not the dismissal of his claims for intentional infliction of mental suffering and spoliation per se, but rather the manner in which the motion judge approached the motion for summary judgment, with particular emphasis on the terms of his direction of a mini-trial.
[15] The third concern is one of procedure and judicial economy. Rule 20 of the Rules of Civil Procedure sets out the procedures to be followed on a motion for summary judgment. Rule 20.04(2) requires motion judges to grant summary judgment if they are satisfied that there is no genuine issue for trial. Rules 20.04(2.1) and (2.2) set out the motion judges’ factfinding powers on a motion for summary judgment. This includes the authority to hear oral evidence. Accordingly, the motion judge’s direction that there be a mini-trial and further submissions on the claim for breach of contract is part of the motion for summary judgment proceeding. This appeal was therefore launched before the motion for summary judgment was even completed.
[16] It is singularly impractical and a waste of judicial resources to hear an appeal from a motion for summary judgment that has not yet been completed. This leads to an unnecessary and wasteful fragmentation of summary judgment proceedings that are designed to resolve disputes in a timely and cost-effective manner. If Mr. Athanassiades loses after the completion of the motion for summary judgment, this would be the sensible point in time to appeal the full outcome of the motion for summary judgment. If Mr. Athanassiades succeeds on the balance of the issues left to be decided on the motion for summary judgment, he can then decide whether to proceed to trial on the remaining issues or whether to appeal with respect to the aspects of his claim that were dismissed before proceeding to trial. This is a far more efficient way of proceeding.
[17] Awaiting the outcome of the mini-trial also potentially avoids concerns over partial summary judgment. As this court has cautioned on several occasions, courts should only grant partial summary judgment in the “clearest of cases”, in part to avoid inconsistent or duplicative findings: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 at para. 34; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561 at para. 4; Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 26-29. At this point, given that the mini-trial has not been decided, the issue of partial summary judgment has not yet crystallized. It is unknown whether the motion for summary judgment will dispose of all causes of action or whether the motion judge will dismiss Rogers’s motion for summary judgment in relation to those causes of action and refer one or both of them to a full trial. There may well be concerns over granting partial summary judgment in this case, but it is not possible to properly decide or address that issue until the completion of the mini-trial.
[18] The appeal was therefore dismissed because the court does not have jurisdiction over the interlocutory aspects of the Order, because the grounds of appeal do not properly distinguish between the final and interlocutory aspects of the Order, and because the motion for summary judgment has not been completed.
[19] Absent some truly exceptional circumstances, which are not present in this case, parties ought not to appeal to this court before a motion for summary judgment has been completed. Although it would be unwise to state categorically that such an appeal should never be brought, the circumstances under which it would be advisable are not readily apparent. In any event, any such appeal must be brought with proper regard to the respective jurisdictions of this court and the Divisional Court. . Eyelet Investment Corp. v. Song
In Eyelet Investment Corp. v. Song (Div Court, 2024) the Divisional Court considered an interesting ONHWPA arbitration mess, where the arbitrator asserted a radical degree of independence that did not accord with the views the appeal judges involved. An arbitrator-sympathetic characterization is that of cultural differences between the judicial and the arbitration 'benches'. It's a useful and even entertaining read, although at the end the CA puts it's foot down firmly on the side of law.
Here, the court - on doubt being cast on the ONHWPA appeal jurisdiction of the lower court decision - would have transferred the case to itself and upheld it, if required:The Arbitration on Liability
[4] Under the terms of the agreements of purchase and sale, the parties agreed to resolve disputes by arbitration. This is a requirement imposed by Tarion Warranty Corporation in its standard forms applicable to freehold new home purchases in accordance with a regulation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31.
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Jurisdiction
[62] An astute reader might have wondered why the first appeal from the Arbitrator went before O’Brien J. as a single judge of the Superior Court of Justice while this appeal came before a panel of the Divisional Court.
[63] Under s. 45 of the Arbitration Act, 1991, and the definitions in s. 1 of that statute, an appeal from a domestic arbitration is taken to the Superior Court of Justice. But s. 17(4) of the Ontario New Home Warranties Plan Act provides:Arbitration
(4) Every agreement between a vendor and prospective owner shall be deemed to contain a written agreement to submit present or future differences to arbitration, subject to appeal to the Divisional Court, and the Arbitration Act, 1991 applies.
[64] As this is an appeal from an arbitration provision in an agreement referred to in s. 17(4), an appeal lies to this court. As the appeal is subject to the Arbitration Act, 1991 and that statute provides for appeals to the Superior Court of Justice, it is not clear to me that the Superior Court is necessarily deprived of its jurisdiction to hear an appeal under s. 45 of that statute.
[65] Even if one accepts that the appeal before O’Brien J was taken to the wrong court and that the Superior Court of Justice had no jurisdiction to hear the appeal, it does not change the outcome. Despite the Arbitrator deeming of agreement by the parties, it seems to me that a court generally cannot obtain jurisdiction by consent. That would mean that O’Brien J. lacked jurisdiction to hear the appeal before her.
[66] If the appeal before O’Brien J. is a nullity, then so too is the subsequent award by the Arbitrator taken pursuant to the referral back to him under s. 37 of the Arbitration Act, 1991. In that case, the final award by the Arbitrator must be set aside in any event.
[67] But that result would leave the initial award on liability extant pending an appeal in this court. No one suggested that the initial award should be revived. The contract analysis by the Arbitrator cannot stand on any standard of review. It was wrong, unreasonable, legally unintelligible, and palpably so. If O’Brien J. lacked jurisdiction to hear the appeal before her, I would transfer it to this proceeding and allow the appeal as she did. . Wakely v. Hutton
In Wakely v. Hutton (Div Court, 2023) the Divisional Court considered a messy appeal route issue where the appellant had filed in the Divisional Court. The case was ulimately transferred to the Court of Appeal:[3] As discussed at the case conference, this court does not have jurisdiction to hear an appeal from a partial summary judgment dismissing claims that, had the claim been successful, would amount to a sum of over $50,000.[1] If Mr. Wakely is successful in his trust interest in the property, the interest is worth over $50,000.
[4] The Divisional Court does have jurisdiction to hear the appeal of the order for the sale of the jointly owned property,[2] but this appeal is tied to Mr. Wakely’s claim that Ms. Hutton holds her 50-percent interest in the property in trust for Mr. Wakely. Pursuant to s. 6(2) of the CJA, the Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.
[5] Section 110(1) of the CJA provides that where a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer. Having considered the circumstances of this case, this matter should be transferred to the Court of Appeal.
[6] Mr. Wakely was referred to s. 110(2), which provides that a proceeding that is transferred to another court under subsection (1) shall be titled in the court to which it is transferred and shall be continued as if it had been commenced in that court. Therefore, his efforts in preparing his material for the Divisional Court have not gone to waste. . Carcillo v. Ontario Major Junior Hockey League
In Carcillo v. Ontario Major Junior Hockey League (Ont CA, 2023) the Court of Appeal notes a requirement of the operation of CJA 6(2) ['Combining of appeals from other courts' (to the CA)]:[12] The appellants do not agree that the appeal of the s. 7 order lies to the Divisional Court but say that, even if it does, the s. 7 order is so inextricably linked to the dismissal of the certification motion that this court ought to take jurisdiction over it under s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. That route would then permit a single judge of this court to grant a stay pursuant to r. 63.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[13] The respondents say that s. 6(2) of the Courts of Justice Act cannot be relied upon because the appellants require leave to appeal in the Divisional Court and this court will not exercise its authority under s. 6(2) unless and until leave is granted. On that point, the respondents are correct: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.). . Voreon Inc. v. Matas Management Services Inc.
In Voreon Inc. v. Matas Management Services Inc. (Ont CA, 2023) the Court of Appeal cites CJA 6(2), here for the merging of an appeal of an interlocutory order (without leave) with a final order appeal:[107] Although the portion of the order dismissing the claim to set aside the transfer of the parking unit and the storage unit is not a final order, where, as here, an appeal in the same proceeding lies and is taken to this court, the court has jurisdiction to hear and determine the appeal from an interlocutory order, pursuant to s. 6(2) of the Courts of Justice Act. . Kong v. Au
In Kong v. Au (Div Court, 2023) the Divisional Court considered a situation where a party sought to hear corporate oppression appeals respecting two corporations, one under the OBCA and the other under the CBCA, together - despite the fact that they have different appeal routes:[2] There is a jurisdiction issue regarding this appeal. One of the two companies at issue is an Ontario corporation – 1802606 Ontario Inc – incorporated under the Business Corporations Act, R.S.O. 1990, c. B.16 (“OBCA”). The other company – Taknology (Canada) Inc. – is a Canada Business Corporations Act, R.S.C. 1985, c. C-44 (“CBCA”). The appeal materials seek to pursue an appeal under both statutes and seek interrelated remedies.
[3] The appeal routes under the above statutes are different. An appeal under the OBCA is to the Divisional Court. However, an appeal under the CBCA is to the Court of Appeal.
[4] The Court raised this jurisdiction issue with the parties last week. It was not raised by either side of this dispute prior to that time.
[5] This Court has the discretion to transfer a matter that has been brought in the wrong court to the proper court, under s. 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Relevant factors include the merits of the proposed appeal, whether the respondents will suffer undue prejudice as a result of further delay while the appeal is waiting to be heard, and whether the appellant moved expeditiously after becoming aware that jurisdiction was in dispute.
[6] In this case, we must also consider the issue of divided jurisdiction. The issues on this appeal relate to both companies and are intertwined. The Divisional Court cannot hear or transfer both appeals. However, the Court of Appeal has jurisdiction, under s. 6(2)(3) of the Courts of Justice Act, to transfer a matter already commenced in the Divisional Court if an appeal in the same proceeding lies and is taken to the Court of Appeal. Upon transfer of the CBCA appeal to the Court of Appeal, the appellant could seek an order from the Court of Appeal under s. 6 and potentially have the whole matter considered together. The appellant intends to do so. That relief is not available in the Divisional Court.
[7] Having considered the submissions and cases put forward by both sides of this dispute, we conclude that the CBCA appeal should be transferred to the Court of Appeal. The relevant statutory provisions regarding appeal rights were expressly stated in the appeal materials but neither counsel identified the issue, accounting for most of the delay. With respect to prejudice, the respondents rely on their legal costs incurred and the costs order below being automatically stayed. The legal costs can still be claimed in the ongoing proceedings. We are not persuaded that there is significant prejudice. As for the merits, they should be heard.
[8] The CBCA appeal is therefore transferred to the Court of Appeal. The OBCA appeal is adjourned to permit the appellant to seek relief from the Court of Appeal under s. 6 of the Courts of Justice Act. . Davis v. Amazon Canada Fulfillment Services, ULC
In Davis v. Amazon Canada Fulfillment Services, ULC (Ont CA, 2023) the Court of Appeal considers transferring a Divisional Court appeal, and joining that appeal with a related pre-existing appeal already in the Court of Appeal, to that latter court [under CJA 6(2) and 6(3)]:Transfer of the Certification Decision Appeal and Combining the Appeals
(i) Whether a Transfer Will be Ordered Involves an Exercise of Discretion Animated by Factors Relevant to the Administration of Justice
[7] Sections 6(2) and (3) of the CJA provide:(2) The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.
(3) The Court of Appeal may, on motion, transfer an appeal that has already been commenced in the Divisional Court or the Superior Court of Justice to the Court of Appeal for the purpose of subsection (2). [8] The fact that the one appeal lies to this court and another to the Divisional Court, and that both are in the same proceeding, are necessary but not sufficient conditions to make an order for transfer. Such an order is discretionary and may be refused even if the parties consent to it. The overriding consideration is whether separate appeals in different courts, or combining them in this court, better comports with the administration of justice. In Cavanaugh v. Grenville Christian College, 2013 ONCA 139, 360 D.L.R. (4th) 670, at para. 87, this court stated:The jurisdiction to join appeals in s. 6(2) is, however, discretionary and not mandatory. There will be cases when factors relevant to the administration of justice are sufficiently strong to override the wishes of the parties to the appeal and any efficiencies achieved by joinder. [9] Relevant factors to whether joinder is appropriate include the risk of inconsistent results, the extent of overlap in the matters to be addressed in the two appeals, and whether the different issues in the two appeals contraindicates joinder: Cavanaugh, at paras. 86 and 88-92. . 2650971 Ontario Inc. v. Shameti
In 2650971 Ontario Inc. v. Shameti (Ont CA, 2021) the Court of Appeal held that it didn't have jurisdiction to hear an appeal that was clearly designated to the Divisional Court, even though some of the orders below were final and thus the appeal route for them lay to the Court of Appeal. The court did not mention CJA 6(2), which deals with this situation, probably because no Court of Appeal matters were appealed - only Divisional Court-routed orders. The court makes the useful comment that parties cannot "confer jurisdiction on this court by agreement" (the respondent had no objection to the matter being heard at the higher court) [para 7].CJA 6(2) The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal. ....[4] The disposition of this appeal turns on a preliminary jurisdictional issue. Section 7 of the Partition Act, R.S.O. 1990, c. P.4, provides that “[a]n appeal lies to the Divisional Court from any order made under this Act.” On August 3, 2021, the Executive Legal Officer of this court alerted the parties to the possible jurisdictional issue that s. 7 of the Partition Act may apply to this appeal such that the appeal lies to the Divisional Court, and asked them to be prepared to address the preliminary issue concerning this court’s jurisdiction to hear the appeal.
[5] The appellants maintain that this court has jurisdiction to hear this appeal because the application judge’s judgment finally disposed of the application. The order for sale of the investment property was only part of the relief sought by the respondents. As the issue of partition and sale was intertwined with other issues that were finally disposed of, this court has jurisdiction to hear the appeal.
[6] The respondents acknowledge that this appeal lies within the jurisdiction of the Divisional Court; however, they have no objection if this court agrees to hear the appeal.
[7] We do not agree that this court has jurisdiction to hear this appeal. The parties cannot confer jurisdiction on this court by agreement.
[8] Section 7 of the Partition Act plainly stipulates that an appeal from an order made under the Act lies to the Divisional Court. The judgment under appeal clearly ordered the sale of the parties’ investment property pursuant to the Partition Act. This remedy was expressly sought in the respondents’ application. That the respondents also included other issues and heads of relief in their application does not alter the fact that the judgment made was with respect to matters that fall squarely under the Partition Act: Webster v. Groszman, 2021 ONCA 55, at para. 8.
[9] As a result, in accordance with s. 7 of the Partition Act, an appeal from the judgment lies to the Divisional Court. This court has no jurisdiction to hear the appeal.
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