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Appeal - Leave to Appeal - Where Prior Judge's Order Requiring Leave. Hardy v. Lee
In Hardy v. Lee (Div Court, 2024) the Divisional Court found an instance of 'collateral attack' on the basis of a case management judge's order that required that "no party may bring any further motions except with leave":[2] In my view, for the reasons set out below, the applicant requires leave of a Superior Court judge before she is entitled to bring her proposed motion for leave to appeal. Accordingly, the motion is stayed pending the earlier of (a) the applicant obtaining leave to bring this motion; and (b) the resumption of the trial.
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The Order Prohibiting Further Motions except with Leave
[9] In the trial scheduling order made by Jarvis J. on October 23, 2023, the case management judge ordered that no party may bring any further motions except with leave.
[10] No one appealed the order made by Jarvis J. It is not open to collateral attack now.
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[15] The Court of Appeal for Ontario routinely requires parties who have been precluded from commencing proceedings without leave of the Superior Court to refrain from bringing appeals in the Court of Appeal without leave first being obtained. It is the parties who face the prohibition under the court’s order; not the appellate court.
[16] The one obvious exception is that (unless leave to appeal is otherwise required) a party does not need leave to appeal the actual order prohibiting them from bringing proceedings without leave. Leave may be required by the CJA. But the leave requirement of the impugned order will not preclude an appeal of that very order. This is apparent as well in the analogous provisions of s. 140 (2.3) of the CJA regarding vexatious litigant orders.
[17] As noted above, this is not a motion for leave to appeal from the order of Jarvis J. precluding motions without leave. That order remains operative and unchallenged.
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[19] In my view, the applicant is not entitled to proceed with the motion for leave to appeal from the terms of the adjournment ordered by Kaufman J. on May 27, 2024 unless or until she obtains leave to do so as required by the order of Jarvis J. dated October 23, 2023.
[20] Rather than dismissing the motion for leave to appeal, it seems to me appropriate to stay it to give the applicant time to consider whether she wishes to move for leave to proceed in the Superior Court. Accordingly, the motion for leave to appeal is stayed pending the earlier of (a) the applicant obtaining leave to bring this motion; and (b) the resumption of the trial.
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