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Appeal - Leave to Appeal - Ruling Establishes No Issue Estoppel. Benzacar v. Terk
In Benzacar v. Terk (Ont CA, 2024) the Ontario Court of Appeal notes that the dismissal of a motion for leave to appeal is not a comment on the merits of the proposed appeal:[30] The “normal and proper” recourse for a party who wishes to challenge this court’s reasons is to seek leave to appeal to the Supreme Court of Canada: Meridian, at para. 8. This is the route 604 pursued, unsuccessfully. Although a decision on leave is not a comment on the correctness of the decision from which leave was sought, 604 has had the recourse the law contemplates. . BCE Inc. v. Québecor Média Inc.
In BCE Inc. v. Québecor Média Inc. (Fed CA, 2022) the Federal Court of Appeal applied law that denial (or granting) of leave to appeal establishes no issue estoppel in the case:[39] The jurisprudence of this Court on applications for leave to appeal holds that in order to obtain leave the applicant must establish an arguable case that the decision in issue was based on an error of law or jurisdiction: CKLN Radio Incorporated v. Canada (Attorney General), 2011 FCA 135, 418 N.R. 198 at para. 6; Lukács v. Swoop Inc., 2019 FCA 145, 305 A.C.W.S. (3d) 500 at para. 15; Lufthansa German Airlines v. Canadian Transportation Agency, 2005 FCA 295, 346 N.R. 79 at paras. 8-9; Krishnapillai v. Canada, 2001 FCA 378, [2002] 3 FC 74 at paras. 10-11 [Krishnapillai]; Radio India (2004) Ltd. v. Canada (Radio-Television and Telecommunications Commission), 2006 FCA 253 at para. 1. In Krishnapillai, this Court decided, at paragraph 11 of its reasons, that:Neither a decision granting leave nor a decision denying leave may be said to be a decision on the merit of any given issue. I have yet to see either type of decision successfully invoked as authority for the proposition that the issues raised in a leave application have been actually decided one way or the other.
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