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Appeals - Trying to Appeal Refusal of a Motion for Leave to Appeal (2). Avedian v. Enbridge Gas Distribution Inc.
In Avedian v. Enbridge Gas Distribution Inc. (Ont CA, 2023) the Court of Appeal considers a motion for a stay pending appeal, though here it was in the context of a motion for leave to appeal - and that in turn of a denied motion for leave to appeal interlocutory case management orders:Discussion
[16] It is not clear to me that the moving parties are entitled to a stay of the Orders based on their application for leave to appeal to this court from the denial of their motion for leave to appeal the Orders to the Divisional Court. They are not seeking leave to appeal the Orders to this court, rather they are seeking leave to appeal the order of the Divisional Court. How does a stay of that order (denial of leave to appeal) give rise to a stay of the underlying orders?
[17] Nonetheless, assuming, without deciding, that the moving parties can seek a stay of the Orders which underly the Divisional Court decision, I am not satisfied that the moving parties meet any of the prongs of the RJR-MacDonald test.
[18] Concerning the first prong of the test, I agree with the moving parties that, under s. 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43[1], this court has jurisdiction to entertain a motion for leave to appeal an order of the Divisional Court denying leave to appeal from an interlocutory order. Nonetheless, I accept the responding parties’ position that in determining such leave motions this court applies a general rule that, absent the Divisional Court “mistakenly declining jurisdiction”, this court will not grant leave to appeal from an order of the Divisional Court refusing leave to appeal: Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 446. See also Haudenosaunee Development Institute, at para. 8.
[19] In Greco, at paras. 3-5, a panel of this court stated:We have considered the applicant’s fresh evidence, which includes a sentencing decision of Justice Chozik, dated January 12, 2021. That fresh evidence changes nothing in terms of the merits of the leave to appeal application.
There is no merit in [the applicant’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 Limited 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 para 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.
Accordingly, the Regional Municipality of Halton’s motion to strike [the applicant’s] Notice of Motion for leave to appeal is granted. The motion to admit fresh evidence is denied. [Emphasis added.] [20] The moving parties argue that Greco does not support the responding parties’ position because they say it is apparent from the fact that this court considered the applicant’s fresh evidence that this court decided the applicant’s motion for leave to appeal on the merits. I disagree.
[21] On my reading of Greco, this court found there was no merit in the applicant’s leave motion, and that it was therefore frivolous, because of the general rule that a party may not appeal, or seek leave to appeal, a Divisional Court decision denying leave to appeal unless a judge of that court “mistakenly declined jurisdiction”. Concerning the applicant’s fresh evidence, this court found simply that it changed nothing in terms of the merits of the leave motion, which was frivolous because of the general rule.
[22] As in Greco, I see no basis for concluding that the Divisional Court mistakenly declined jurisdiction when it denied leave to appeal. As noted in Greco, the Divisional Court was under no obligation to give reasons for denying leave in this matter. Further, I am not persuaded that McEwen (Re), 2020 ONCA 511 assists the moving parties in relation to this issue.
[23] McEwen involved a review by a panel of this court of the decision of a single judge of this court under s. 7(5) of the Courts of Justice Act. The single judge had denied the moving party leave to appeal a decision of a Superior Court judge under s. 193(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. Based on a review of the reasons given by the single judge of this court, a panel of this court determined that the single judge’s reasons were insufficient to explain why he had denied leave to appeal, leading the panel of this court to conclude that the single judge declined jurisdiction by not making a decision on the merits.
[24] In this case, however, as I have said, the Divisional Court was under no obligation to give reasons for denying leave to appeal and I have no basis for concluding the Divisional Court mistakenly declined jurisdiction.
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