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Appeals - Leave to Appeal - to Supreme Court of Canada. Mouralian v. Groleau
In Mouralian v. Groleau (Ont CA, 2024) the Ontario Court of Appeal dismissed a motion for stay pending appeal to the SCC:A. The Governing Principles
[4] The test for a stay pending appeal is well established. The applicant must show:1. there is a serious issue to be adjudicated on its proposed appeal;
2. it will suffer irreparable harm if the stay is not granted; and
3. the balance of convenience favours granting the stay. [5] For a stay pending appeal to the Supreme Court, the first requirement, that there is a serious issue to be adjudicated, must be assessed in light of that court’s stringent leave criteria. The governing principles were set out in BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at paras. 18-19:Ordinarily, the threshold for showing a serious issue to be adjudicated is low. However, the criteria for granting leave to appeal to the Supreme Court of Canada add another layer to this component of the test. Under s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, the Supreme Court of Canada typically grants leave to appeal only in cases of public or national importance. Thus, a provincial appellate court judge hearing a motion for stay pending leave to appeal to the Supreme Court of Canada must take account of the stringent leave requirements in the Supreme Court Act: see Merck & Co. v. Nu-Pharm Inc. (2000), 2000 CanLII 15240 (FCA), 5 C.P.R. (4th) 417 (F.C.A.) and Ontario Public Service Employees Union v. Ontario (A.G.) (2002), 2002 CanLII 44918 (ON CA), 158 O.A.C. 113.
The Supreme Court of Canada itself decides when leave should be granted and does not give reasons for doing so. As Rothstein J.A. noted in Merck, this puts provincial appellate court judges in a “somewhat awkward position.” Nonetheless, the stay test requires that I make some preliminary assessment of the merit of the leave motion. [6] These principles have been followed consistently by this court: see e.g., Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 616, at para. 16; Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 332, 145 O.R. (3d) 794, at paras. 10-13; and Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644, at paras. 12-13. . Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church
In Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church (Ont CA, 2024) the Ontario Court of Appeal dismissed a 'stay pending leave to appeal to the SCC' motion:[2] The test for a stay pending appeal is well established. The applicant must show:1. there is a serious issue to be adjudicated on its proposed appeal;
2. it will suffer irreparable harm if the stay is not granted; and
3. the balance of convenience favours granting the stay. [3] For a stay pending appeal to the Supreme Court, the first requirement, that there is a serious issue to be adjudicated, must be assessed in light of the Court’s stringent leave criteria. The governing principles were set out in BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at paras. 18-19:
18 Ordinarily, the threshold for showing a serious issue to be adjudicated is low. However, the criteria for granting leave to appeal to the Supreme Court of Canada add another layer to this component of the test. Under s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, the Supreme Court of Canada typically grants leave to appeal only in cases of public or national importance. Thus, a provincial appellate court judge hearing a motion for stay pending leave to appeal to the Supreme Court of Canada must take account of the stringent leave requirements in the Supreme Court Act: see Merck & Co. v. Nu-Pharm Inc. (2000), 2000 CanLII 15240 (FCA), 5 C.P.R. (4th) 417 (F.C.A.) and Ontario Public Service Employees Union v. Ontario (A.G.) (2002), 2002 CanLII 44918 (ON CA), 158 O.A.C. 113.
19 The Supreme Court of Canada itself decides when leave should be granted and does not give reasons for doing so. As Rothstein J.A. noted in Merck, this puts provincial appellate court judges in a “somewhat awkward position.” Nonetheless, the stay test requires that I make some preliminary assessment of the merit of the leave motion.
[4] These principles have been followed consistently by this court: see e.g., Iroquois Falls Power Corp. v. Ontario Electricity Financial Corp., 2016 ONCA 616, at para. 16; Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 332, at para. 10; Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644, at para. 13. . R. v. Coates
In R. v. Coates (Ont CA, 2024) the Ontario Court of Appeal considered a motion to stay a sentence of a driving prohibition and fine for the offence of "operating a conveyance when the concentration of alcohol in his blood exceeded the legal limit contrary to s. 320.14(1)(b) of the Criminal Code", while the appellant was seeking leave to appeal to the SCC.
The issue faced by the court was whether it had "the jurisdiction ... to grant a stay in the absence of leave having been granted by the Supreme Court":[8] The applicant states that he seeks leave to appeal pursuant to s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26 and that s. 65.1(1) of the Supreme Court Act provides this court with jurisdiction to stay the applicant’s driving prohibition and fine.
[9] In contrast, the Crown argues that this court does not have jurisdiction to grant a stay pending appeal to the Supreme Court in these circumstances unless and until leave is granted. The Crown submits that s. 320.25 of the Criminal Code governs the circumstances in which a stay may be granted for such a sentence. That section speaks of “if an appeal is taken” against a conviction or sentence for an offence relating to a motor vehicle or other conveyance. An appeal is only taken, the Crown argues, when leave has been granted.
[10] I do not accept that this court has jurisdiction to stay a driving prohibition in the absence of leave having been granted by the Supreme Court. I say this for the following reasons.
[11] As the Crown elected to proceed by way of summary conviction at trial, the Criminal Code does not confer jurisdiction to appeal directly to the Supreme Court. Leave to appeal is required.
[12] Section 320.25(1) of the Criminal Code states:Subject to subsection (2), if an appeal is taken against a conviction or sentence for an offence under any of sections 320.13 to 320.18, a judge of the court to which the appeal is taken may direct that the prohibition order under section 320.24 arising out of the conviction shall, on any conditions that the judge imposes, be stayed pending the final disposition of the appeal or until otherwise ordered by that court. [13] The offences cited in s. 320.25(1) all concern offences relating to a ‘conveyance,’ which is defined to mean a motor vehicle, a vessel, an aircraft, or railway equipment: Criminal Code, s. 320.11. The offence for which the applicant was convicted pursuant to s. 320.14(1)(b) is encompassed by this subsection, which specifically addresses stays of a prohibition order. The subsection speaks of “if an appeal is taken” and therefore contemplates leave to appeal already having been obtained.
[14] Section 320.25(2) of the Criminal Code states:In the case of an appeal to the Supreme Court of Canada, a direction may be made only by a judge of the court from which the appeal was taken. [15] Section 320.25(2) of the Criminal Code provides for a stay of a prohibition order when the appeal is to the Supreme Court. It provides that a direction that a prohibition order be stayed “may be made only by a judge of the court from which the appeal was taken.” In other words, under subsection 2, the Supreme Court does not address such an application. However, before this court can grant a stay of the prohibition order, the Supreme Court has to have first granted leave to appeal.
[16] The history of s. 320.25(2) of the Criminal Code provides some insight into its scope. Its predecessor was s. 261(1.1), which mirrors the text of s. 320.25(2). Section 261(1.1) itself was introduced in 2008, when Parliament passed the Tackling Violent Crimes Act, S.C. 2008, c. 6. Before that, the former s. 261 conferred jurisdiction to stay a driving prohibition exclusively on “a judge of the court being appealed to.” Thus, in the case of an appeal to the Supreme Court, the stay had to emanate from that court. The 2008 amendments changed this. The Supreme Court no longer adjudicates such a motion; the appellate court does, but only after leave to appeal has been granted.
[17] In contrast, under s. 65.1 of the Supreme Court Act, either the court appealed from, or the Supreme Court, may order a stay of proceedings on the filing of a notice of application for leave to appeal.
[18] Section 65.1(1) of the Supreme Court Act states:The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate. [19] It would be strange if, under s. 320.25 of the Criminal Code, the Supreme Court is relieved from considering stays of prohibition orders when an appeal is taken from driving convictions but (following the applicant’s interpretation), is obliged under s. 65.1 of the Supreme Court Act to engage with a request for a stay of a driving prohibition in the face of a request for leave to appeal. The applicant’s interpretation would run counter to the legislative intent reflected in s. 320.25.
[20] Instead, s. 320.25 is the specific provision governing stays of prohibitions for appeals from driving convictions and s. 65.1 is the more general provision, albeit in a different statute. Section 320.25 creates a complete code for applications to stay driving prohibitions. However, its focus is narrow. It only addresses stays relating to driving prohibitions ordered under s. 320.24 and the offences in ss. 320.13-320.18. By contrast, s. 65.1 of the Supreme Court Act addresses stays pending leave to appeal broadly. In short, the narrow Criminal Code provision operates as an exception to the more general s. 65.1 of the Supreme Court Act. As such, the former should prevail. As stated by Ruth Sullivan in The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022) at pp. 354-355, when dealing with two provisions in different statutes passed by the same legislature: “the specific provision implicitly carves out an exception to the general one.”
[21] In R. v. Reed (1997), 1997 CanLII 3276 (BC CA), 120 C.C.C. (3d) 556 (B.C. C.A.), Finch J.A. considered s. 320.25’s penultimate predecessor, the former s. 261. He found he had no jurisdiction to grant a stay of a driving prohibition despite the broad statement in s. 65.1 of the Supreme Court Act. At para. 11, he stated that: “in my view the clear and specific language of the Criminal Code and the Motor Vehicle Act dealing with orders of the sort that are sought in this case must be taken to apply in preference to the more general provision of s. 65.1.” The same reasoning applies to s. 320.25 and is reinforced by other areas of the law where specific legislation has been said to govern stays pending leave to appeal to the Supreme Court, rather than the Supreme Court Act: see e.g. Boily v. McNulty, 1927 CanLII 110 (SCC), [1927] S.C.R. 275; Labatt Breweries of Canada Ltd. v. Canada (Attorney General), 1979 CanLII 183 (SCC), [1980] 1 S.C.R. 594.
[22] In addition, it should be noted that s. 320.25 applies to all driving conviction appeals, including those to the Supreme Court. If there is a leave requirement, s. 320.25 limits the availability of a stay to cases where leave has been granted.
[23] In this regard, I note that other provisions of the Criminal Code expressly provide remedies where leave to appeal and appeals are both sought to be encompassed. For instance, s. 679(8) on bail pending appeal states: “This section applies to applications for leave to appeal and appeals to the Supreme Court of Canada in summary conviction proceedings.” The same is true with s. 683(5) on suspensions and s. 689(1)(b) on forfeiture of property. Had Parliament intended that stays of driving prohibitions be available when leave to appeal is sought, it would have said so.
[24] I would also observe that a driving prohibition is temporal in nature. If the Supreme Court does grant leave to appeal, an applicant is still at liberty to apply for a stay pending the appeal. This reality supports the interpretation given to s. 320.25 of the Code.
[25] I am therefore compelled to conclude that I do not have jurisdiction to grant a stay of the applicant’s driving prohibition in the absence of leave to appeal having been granted.[1] . R. v. Scott
In R. v. Scott (Ont CA, 2023) the Court of Appeal referenced a remand jurisdiction from the Supreme Court of Canada back to the original appellate court:[10] A formal order dismissing the conviction appeal and reducing the sentence was issued and entered in September 2022.
[11] The applicant sought leave to appeal to the Supreme Court of Canada, arguing that this court had denied him procedural fairness by failing to consider whether the verdict was reasonable. As part of the request for leave to appeal, the applicant made a request under s. 43(1.1) of the Supreme Court Act, R.S.C. 1985, c. S-26, to remand the case to this court for a new hearing. . Sutton v. Sutton
In Sutton v. Sutton (Ont CA, 2023) the Court of Appeal commented on the test for leave to appeal to the SCC:[9] Justice Paciocco J.A. noted: “Since the Supreme Court of Canada typically grants leave only in cases of public or national importance, an application judge must consider whether these considerations are apt to be met”: Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 332, 145 O.R. (3d) 794, at para. 12. He added, at para. 13: “To be sure, the threshold on both the merits and the national or public importance considerations remains low”, citing Livent Inc., at paras. 8-9. In his view, which I adopt, a low likelihood that the Supreme Court will grant leave “will militate against the imposition of a stay”: at para. 13.
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