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Appeals - Trying to Appeal Refusal of a Motion for Leave to Appeal
MORE CASES
Part 2
. Catholic Children's Aid Society of Toronto v. V.O.
In Catholic Children's Aid Society of Toronto v. V.O. (Ont CA, 2023) the Court of Appeal considers whether the law allows for an appeal from a denial of leave to appeal, here in a CYFSA (child welfare) context:(3) This court has jurisdiction to hear an appeal from a refusal of leave
[43] This issue can be addressed briefly. It is well established that an order refusing leave may be interlocutory or final, depending on the effect of the refusal: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 680. The CCAS accepts as much, but simply asserts that this was an interlocutory order without regard to its effect. There is no merit in this submission.
[44] The effect of the denial of leave is plain: the appellants were precluded from bringing a status review application to have L returned to them. The adoption of L could proceed following the denial of leave. Once L is placed for adoption, all access orders will terminate and the parents and the CCAS will be precluded from bringing a status review application. This effect is final, and there is no doubt that this court has jurisdiction to hear the appeal. . Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C.
In Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C. (Ont CA, 2023) the Court of Appeal considered the arbitration court appeal provisions under both s.45 and s.49 of the Arbitration Act in a mucky, convoluted context. Section 45 provides for appeals to the Superior Court, with or without leave to appeal, as the parties agree - or no appeal, also if the parties agree. If a Superior Court appeal is heard and decided, further appeal lays to the Court of Appeal - with leave [s.49].
Here, the appellant sought leave to appeal to the Superior Court, which was denied - but then they further sought an appeal of that denial (which is not normally allowed). The respondent in that appeal sought to quash it, which - surprisingly - was denied. The Court, drawing upon the Denison case, drew a distinction between denial of appeal grounded on the merits of the leave to appeal motion versus denial on it on Arbitration Act availability. In the former case the Court of Appeal could hear an appeal from a denial of leave to appeal (whew):[1] When an arbitration agreement provides that an award made under it may be appealed on a question of law, a party dissatisfied with the award may appeal on such a question to the Superior Court of Justice as of right. But when no such appeal is provided for in the arbitration agreement, a party may only appeal an award on a question of law with leave of that court, and only “[i]f the arbitration agreement does not deal with appeals on questions of law”: Arbitration Act, 1991, S.O. 1991, c. 17, ss. 45(1) and (2) (the “Arbitration Act”).[1]
[2] In other words, the Arbitration Act contemplates three different scenarios regarding appeals to the court on questions of law. The arbitration agreement may expressly provide for, be silent on, or preclude such appeals. In the first scenario there is an appeal as of right; in the second, there is an opportunity to appeal but only with leave; and in the third, there is no appeal or right to seek leave to appeal at all.
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[22] If the Superior Court has decided an appeal, either because leave to appeal was granted by the Superior Court or because there was an appeal to that court as of right, s. 49 of the Arbitration Act provides for a further appeal, with leave, to this court. But, as TEBC emphasizes, that is a process available only when the Superior Court has entertained and decided an appeal − the Arbitration Act does not provide for an appeal to this court from a refusal by the Superior Court to grant leave to appeal and thus to entertain an appeal at all.
[23] TEBC places heavy reliance on Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 1996 CanLII 413 (ON CA), 29 O.R. (3d) 612 (C.A.), in which an appeal to this court from the refusal of a Superior Court judge to grant leave to appeal an arbitration award was quashed: at p. 626. The Hillmond court, at pp. 617-18, gave a number of reasons for doing so: the Arbitration Act does not grant a right of appeal from an order refusing leave to appeal; the appellant could not rely upon s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), which provides for an appeal to this court from a final order of a Superior Court judge, as the refusal by the lower court to grant leave to appeal was an interlocutory order; and allowing an appeal from a refusal to grant leave to appeal defeats the object of arbitration by frustrating the legislated impediment to appeals.
[24] However, Hillmond was distinguished in Denison Mines Ltd. v. Ontario Hydro (2001), 2001 CanLII 5681 (ON CA), 56 O.R. (3d) 181 (C.A.). In Denison, the appellant had applied to a Superior Court judge for leave to appeal an arbitration award; leave to appeal was refused. The appellant appealed the dismissal of its application for leave to this court. The respondent’s motion to quash the appeal, relying on Hillmond, was dismissed.
[25] The court in Denison acknowledged the general rule that no appeal lies from an order granting or refusing leave to appeal. However, it also held that there was an established exception to that general rule where the appeal from the refusal to grant leave to appeal is premised on a submission that the judge refusing leave to appeal mistakenly declined jurisdiction to consider whether leave to appeal was warranted: at para. 8. The court went on to hold that in these circumstances the order declining leave to appeal is final within the meaning of s. 6(1)(b) of the CJA: at para. 21.
[26] The key distinction between these two authorities is that in Denison, unlike in Hillmond, the judge had dismissed the leave to appeal application holding that the parties’ arbitration agreement precluded appeals − the parties had contracted out of any right of appeal − and that s. 45(1) was not available as a route to seek leave to appeal. She had not gone on to consider the grounds on which leave to appeal was sought, as she in effect considered herself to be without jurisdiction to do so based on her interpretation of the appeal provisions of the arbitration agreement. The appeal to this court from that decision was premised on the application judge’s interpretation, and therefore her declining of jurisdiction, being mistaken.[4]
[27] The case at bar is indistinguishable from, and is governed by, Denison. As in Denison, here the application judge interpreted the arbitration agreement as precluding appeals, rendering s. 45(1) of the Arbitration Act unavailable to BIM. Given his interpretation of the arbitration agreement, he did not consider whether the grounds of appeal raised by BIM were deserving of leave. He therefore declined to exercise any jurisdiction to consider whether leave to appeal should be granted. The main point of BIM’s appeal to this court is its contention that the application judge misinterpreted the arbitration agreement as precluding appeals and therefore mistakenly declined jurisdiction to consider whether leave to appeal should be granted under s. 45(1).
[28] TEBC argues that Denison is distinguishable because there the parties had agreed not to argue the grounds for leave until the application judge decided whether the arbitration agreement precluded appeals, whereas here the parties argued the grounds for leave at the same hearing that they argued whether the contracts precluded appeals.
[29] It is not germane how many issues the parties put before the application judge − what is germane is that the application judge declined to exercise any jurisdiction to consider whether BIM’s grounds were deserving of leave to appeal, having decided, as a preliminary issue, that the contracts precluded appeals, which made s. 45(1) of the Arbitration Act unavailable. On the authority of Denison, an appeal on the question of whether he mistakenly declined jurisdiction lies to this court. . Haudenosaunee Development Institute v. Metrolinx
In Haudenosaunee Development Institute v. Metrolinx (Ont CA, 2023) the Court of Appeal considers the general non-appealability of a denial of a leave to appeal motion, and an exception - here in an indigenous rights case:[8] Generally, a party may seek leave to appeal a decision of the Divisional Court pursuant to s. 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43. As a rule, however, there is no ability to appeal from an order of an intermediate court refusing leave to appeal, unless the judge of that court “mistakenly declined jurisdiction”: Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 446, at para. 4; Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 1996 CanLII 413 (ON CA), 29 O.R. (3d) 612 (C.A.), at pp. 624-25; and Denison Mines Limited v. Ontario Hydro (2001), 2001 CanLII 5681 (ON CA), 56 O.R. (3d) 181 (C.A.), at paras. 4-5, 8.
[9] HDI argues that this is an exceptional case which justifies this court considering a motion for leave to appeal from the denial of leave to appeal by the Divisional Court. HDI argues that this case requires an exceptional avenue of redress given the alleged denial of sufficient “engagement” with HDI within the meaning of that term given by the Supreme Court of Canada in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 64. As HDI states in its factum: “redress must be available where the judge below has disregarded the sacred and constitutionally-protected treaty rights of an indigenous litigant.”
[10] The exception recognized by this court to the general rule against hearing appeals from leave to appeal decisions at the Divisional Court, however, is a narrow one: Hillmond Investments Ltd., at p. 625. It includes both issues of jurisdiction and disregard of some essential statutory right such as procedural breaches (the example given is a decision reached on submissions from one party without hearing from the other). It does not extend to considering the merits of leave to appeal motions, no matter how important the subject matter of those merits may be.
[11] In this case, the jurisdictional question has already been decided by a panel of this court on February 17, 2023, which concluded that an appeal from the order of Hackland J. at issue lay to the Divisional Court, with leave. Therefore, it cannot be said that the Divisional Court “mistakenly declined jurisdiction” when it denied HDI’s motion for leave to appeal.
[12] HDI nevertheless argues the exception to the general rule against hearing an appeal from the Divisional Court’s leave to appeal decision applies because its rights to consultation are procedural in nature, and all the more significant given the constitutional context.
[13] Metrolinx submits that as HDI has raised no issue going to the jurisdiction or denial of rights in the leave to appeal decision, it does not meet the narrow exception.
[14] I agree the exception does not apply. HDI alleges significant breaches to constitutionally required consultation. The narrow exception where leave to appeal is sought from a denial of leave to appeal, however, does not relate to a denial of fairness or breach of constitutional rights as between the parties. Rather, it deals with procedural errors by the court granting or denying leave to appeal (as in the scenario of decisions in chambers after hearing from one side but not the other mentioned in Hillmond, at p. 625). HDI has not raised this kind of procedural flaw in the decision-making of the Divisional Court. Therefore, this case does not fit within the narrow exception. . Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction)
In Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction) (Ont CA, 2021) the Court of Appeal dismissed a motion for leave to appeal under R25.11 (strikings of pleadings or other documents):[4] There is no merit to Ms. Snowball’s motion for leave to appeal from the Divisional Court’s order refusing leave to appeal and it is therefore frivolous. As a general rule, there is no ability to appeal from an order of an intermediate court refusing leave to appeal, unless the judge of that court “mistakenly declined jurisdiction”: Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 1996 CanLII 413 (ON CA), 135 D.L.R. (4th) 471 (Ont. C.A.), at pp. 483-84; Denison Mines Limited v. Ontario Hydro (2001), 2001 CanLII 5681 (ON CA), 56 O.R. (3d) 181 (C.A.), at paras. 4-5, 8. The Divisional Court did not “mistakenly declin[e] jurisdiction” when it determined the leave motion. The Divisional Court was under no obligation to provide reasons for refusing leave to appeal: 2265535 Ontario Inc. v. Vijayant Sood, 2017 ONSC 4738 (Div. Ct.), at para. 1.
[5] Accordingly, the Regional Municipality of Halton’s motion to strike Ms. Snowball’s Notice of Motion for leave to appeal is granted. .... . Mills v. Thompson
In Mills v. Thompson (Div Ct, 2022) the Divisional Court considered the quixotic issue of whether appealing a denial of a leave to appeal motion, itself requires leave. The court held, thankfully, that no right of appeal, either with leave or without, lay from a denial to grant leave to appeal:[1] The issue on this motion is whether a party requires leave to appeal from a denial of leave to appeal or may appeal a denial of leave as of right.
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[16] Hillmond then appealed the denial of leave to the Court of Appeal, which held that Davidson J.’s decision to deny leave to appeal was not a final order, but an interlocutory decision.
[17] The Court of Appeal stated that the first issue to be determined was whether “the order of Davidson J. was a final order of a judge of the Ontario Court (General Division) and was therefore appealable as of right under the provisions of … the Courts of Justice Act”. Finlayson J., writing for the Court, set out the issues as follows, at p. 5:I would phrase the issues in this appeal in the following language.
(1) Does the Arbitration Act, 1991 grant a right of appeal from the order of Davidson J. refusing leave to appeal?
(2) Does the C.J.A. grant a right of appeal from the order of Davidson J. refusing leave to appeal?
(3) Is there a right of appeal to this court from the award of the arbitrator on the merits, notwithstanding the refusal of Davidson J. to grant leave?
I would answer all three questions in the negative. [18] In bringing his appeal, Hillmond asked that the order denying leave be set aside, that an order be made granting the appellant leave to appeal, and that judgment be rendered on the merits of the appeal. This proposed order was different than the order sought by the Appellant in our case, where the Appellant asks only that the order denying leave be set aside and an order granting leave to appeal be substituted. The Appellant is not seeking a decision on the merits of the appeal. I will consider later in these reasons whether this should make any difference in the result, but I want to point it out now because the relief requested by Hillmond was relevant to the analysis of the Court of Appeal.
[19] The Court of Appeal set out the following analysis as to why, in its view, a denial of leave to appeal can itself be appealed only with leave. The Court focused first on the fact that Hillmond was asking the Court to hear the merits of the appeal in addition to the issue of whether leave should be granted. The Court stated, at p. 7:I think that the very nature of the relief sought underscores the fundamental problem facing the appellant. While the appeal is nominally from the order of Davidson J. for refusing to grant leave to appeal, the result is a request that we by-pass the leave requirement, review the award of the arbitrator, and determine the correctness of that award. If, as authority suggests (see Industrial Acceptance Corp. v. Canada Permanent Trust Co., 1931 CanLII 67 (SCC), [1931] S.C.R. 652 at p. 655, [1932] 1 D.L.R. 287), the leave requirement is intended to prevent frivolous and unnecessary appeals, that purpose would be frustrated if an appeal as of right could be had from decisions refusing to grant leave or, for that matter, from decisions granting leave. [20] The Court, however, went beyond the specific relief requested by Hillmond, stating, at p. 8 that “There is Canadian and English authority for the proposition that a refusal by an intermediate court to grant leave to appeal is not a "final order or judgment" that may be appealed to a higher appellate court.”. The Court relied on the House of Lords decision in Lane v. Esdaile, [1891] A.C. 210, 64 L.T. 666, stating, at p. 9:The House of Lords held that if leave to appeal could be had from a refusal to grant leave to appeal, the whole object of the concept of leave, which is to grant an appellate tribunal the power to stop unnecessary or frivolous appeals, would be defeated. Lord Halsbury stated at pp. 211-12:But when I look not only at the language used, but at the substance and meaning of the provision, it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal -- that there should not be an appeal unless some particular body pointed out by the statute . . . should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal? I find this language most compelling even in contemporary circumstances. Modern systems of alternative dispute resolution, commonly referred to as A.D.R., are designed to help parties solve disputes efficiently without resort to formal litigation and with a minimum of judicial interference. Allowing an appeal from a refusal to grant leave to appeal defeats the object of arbitration by frustrating the legislated impediment to appeals as of right. The purpose of s. 45 of the Arbitration Act, 1991 is to stop an appeal unless the Ontario Court (General Division) grants leave.
The function of the General Division as a check on unnecessary or frivolous appeals is defeated if the Court of Appeal may hear an appeal from the General Division's refusal to grant leave. [emphasis added] [21] The Court of Appeal also relied on the Supreme Court of Canada’s decision in Canadian Utilities Ltd. v. Deputy Minister of National Revenue, 1963 CanLII 88 (SCC), [1964] S.C.R. 57, 41 D.L.R. (2d) 429, where Cartwright J. for the court, said at p. 61:In my opinion, the reasoning of the House of Lords in Lane et al. v. Esdaile et al is decisive against the existence of a right of appeal to this Court from the decision of Thorson P. to refuse leave to appeal. [22] As I read the Court of Appeal’s decision and analysis, the conclusion applies regardless of whether the Appellant only seeks to appeal the denial of leave, or both the denial of leave and the merits of the appeal. Either way, there is no right to appeal a decision denying leave to appeal.
[23] The Court explained that one reason for this conclusion is that the decision to deny leave to appeal is not a decision on the merits, only a decision that the matter does not merit leave to appeal: Paul v. R., 1960 CanLII 9 (SCC), [1960] S.C.R. 452, per Taschereau J., at p. 457:It is furthermore my strong view, that a refusal by a Court of Appeal to grant leave to appeal is not tantamount to a dismissal of the appeal. It simply means that the right of appeal which does not exist as of right, but only by leave, never came into being. A judgment on an application for leave to appeal is one judgment, and the disposal of the case on its merits when leave has been granted is another judgment. The refusal by the Court of Appeal to grant leave is not a disposal of the case on its merits. [24] Finally, the Court of Appeal stated, at p. 15:[A]s I read the cases, they reinforce the proposition that without specific statutory language permitting an appeal from a refusal to grant leave, the refusal signifies that the appellate process is at an end. [25] The Court agreed that “there must be an avenue of redress in exceptional cases”, but limited these to cases where the intermediate court “mistakenly declines jurisdiction on a leave motion by acting upon a wrong principle”. In such cases the appellant would still have to seek leave to appeal. The Court stated at p. 21:In this province, the limited appellate review of the granting or denial of leave to appeal by a General Division judge is exercised by the Divisional Court, not the Court of Appeal, because the order, however mistaken, still is not a final order: it remains interlocutory. I hasten to add that there is no suggestion on this record that procedural or other defects caused Davidson J. to mistakenly decline jurisdiction in considering whether to grant leave. But if he had, the procedural route for relief from an order refusing or granting leave is set out in s. 19(1)(b) of the C.J.A. as follows:19(1) An appeal lies to the Divisional Court from,
(b) an interlocutory order of a judge of the General Division with leave as provided in the rules of court; Furthermore, leave will only be granted under s. 19(1)(b) if it can be shown that Davidson J. declined jurisdiction and not merely that he should have recognized errors in law on the part of the arbitrator. An examination of the latter would simply be a rehearing of the original motion. [26] The Court of Appeal concluded its analysis in Hillmond at p. 22 in unambiguous terms:The ultimate question on the motion to quash this appeal is whether leave was required before this court had jurisdiction to entertain the appeal. On authority, it clearly was. It is also established that our court will not permit an appellant to circumvent the requirement of obtaining leave to appeal by complaining about the correctness of the decision of the judge or tribunal that declined to give that leave. An order granting or refusing leave is not a final order. In the very limited circumstances in which such an interlocutory order could be reviewed, redress must be had to the Divisional Court with leave.
Accordingly, the answer to issue (1) is that, failing leave, there is no appeal from an award of an arbitrator under the Arbitration Act, 1991. The answer to issue (2) is that the order under appeal is not a final order because it does not dispose of the issues between the parties and, accordingly, s. 6(1)(b) of the C.J.A. is not available to the parties. As to issue (3), the appellant's argument that the refusal of the judge to grant leave has the effect of conferring final order status on the decision of the arbitrator is of no consequence. The refusal to grant leave may well mean that the award of the arbitrator is final as between the parties, but that is what the legislature intended under the provisions of s. 45 of the Arbitration Act, 1991. [emphasis added] [27] See also: Denison Mines Ltd. v. Ontario Hydro (2001), 2001 CanLII 5681 (ON CA), 56 O.R. (3d) 181 where Morden J.A. stated, at paras. 6 - 8:The non-appealability of decisions refusing or granting leave to appeal is the general rule and, subject to the exception to which I shall refer shortly, it should, as Hillmond held, be applicable to appeals from orders made under s. 45(1) of the Arbitration Act, 1991. The rule flows from the strong implication that, notwithstanding the wording of s. 6(1) (b) of the Courts of Justice Act, a general statute, no appeal is intended from an order made refusing or granting leave to appeal. Any other conclusion would defeat the purpose of s. 45(1), which is to limit appellate recourse to the courts in arbitration matters.
This strong negative implication is reinforced by s. 49 of the Arbitration Act, 1991, which provides for an appeal to the Court of Appeal from a superior court judge's decision in an appeal of an award, but only with leave of the Court of Appeal. It would be incongruous to attribute to the legislature an intention that there be appeals, as of right, from decisions on leave applications under s. 45(1) when no such appeal is provided for with respect to decisions on what may be called the main issue, the correctness of the arbitral decision.
As I have said, the non-appealability of orders refusing leave is the general rule. As Hillmond sets forth…, the courts have engrafted onto this general rule an exception which is applicable where the judge mistakenly declines jurisdiction. [28] If a denial of leave to appeal can be appealed only where the judge “mistakenly declines jurisdiction”, there must be some process to ensure that such appeals are only brought where this exception might apply. In the absence of a gatekeeper the exception could easily swallow the rule. If a denial of leave to appeal can be appealed as of right, every motion for leave to appeal from the decision of an arbitrator would be heard twice: once by a judge of the Superior Court, and, if leave is refused, a second time by a panel of the Divisional court after oral argument. Such a result would be inconsistent with Hillmond, which clearly states that the procedural route for relief from an order refusing leave to appeal under s.45 of the Arbitration Act is an application for leave to appeal under s. 19(1)(b) of the Courts of Justice Act.
[29] The Appellant points out that in Denison, the Court of Appeal held, at paras. 20 -21, that the decision refusing leave to appeal under the Arbitration Act was a final order.
[30] A similar result was reached by Rouleau J.A. (In Chambers) in Mignacca v. Merck Frosst Canada Ltd., 2009 ONCA 393, where he noted, at para. 19: “There is considerable confusion as to whether a refusal to grant leave to appeal can be appealed and, if so, what court to apply to and what procedure to follow.”
[31] In Mignacca, Rouleau J.A. held:[N]ot every refusal of leave to appeal to the Divisional Court is necessarily an interlocutory order. Where, as in this case, a statute provides a right of appeal to the Divisional Court with leave of the Superior Court of Justice, the question of whether the refusal to grant leave is an interlocutory or final order will depend on whether the refusal meets the definition of a final order articulated by this court in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, [1932] O.J. No. 380 (C.A.). [32] In Mignacca, Rouleau J.A. found, at para. 24, that in that case, leave to appeal was not required to appeal a decision denying leave to appeal.
[33] Notwithstanding the decisions in Denison and Mignacca, the Court of Appeal’s decision in Hillmond has been followed in subsequent decisions of both the Court of Appeal and the Divisional Court, which confirm “the general rule that there is no right of appeal from an order refusing leave to appeal”: Nithiananthan v. Quash, 2017 ONSC 155, at para. 5 and paras. 6-11 and 13.
[34] See also: Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 446; Fort Erie (Town) v. 2312810 Ontario Inc., 2021 ONCA 500; CAMPP Windsor Essex Residents Association v. City of Windsor, 2021 ONSC 3456, at para. 2; McEwen (Re), 2020 ONCA 511, at paras. 63 -68; Ottawa (City) v. Coliseum Inc., 2016 ONCA 363, at paras. 27 -29; Peritus Inc. v. Elder, 2011 ONSC 7357.
[35] These cases all confirm that there is no appeal from a denial of leave to appeal save in exceptional circumstances, and even then, leave to appeal is required to confirm the existence of the exceptional circumstances. In this respect I am unable to reconcile the decision in Hillmond and its progeny with the decisions in Denison and Mignacca.
[36] In any event, there is no allegation in the Appellant’s Notice of Appeal that Nicholson J. declined jurisdiction in this case. The Notice of Appeal argues that the judge committed errors of law and failed to accord the Appellant procedural fairness, although no particulars are provided. There is certainly nothing in the Notice of Appeal that would bring it within the narrow exception to the general rule that there is no right of appeal from an order refusing leave to appeal.
[37] Accordingly, even if the Appellant does not require leave to appeal, the Notice of Appeal should be struck because it does not fall into the narrow exception identified in Hillmond.
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