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Appeals - Resolving Multiple Appeal Jurisdictions. Elkins v. Van Wissen
In Elkins v. Van Wissen (Ont CA, 2024) the Ontario Court of Appeal made the interesting appellate SOR point that appeals from the Divisional Court (where commonly appeals to it are limited to 'questions of law', as here under RTA 210) to the Court of Appeal [under CJA s.6(1)(a)], are themselves limited to "a question that is not a question of fact alone" - thus allowing for the inclusion of issues of mixed fact and law, a broader review at the higher court:6 (1) An appeal lies to the Court of Appeal from,
(a) an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal as provided in the rules of court; ...
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A. The Standard of Review
[74] To determine what standard of review this court is to apply when deciding Issue 2, we must consider the statutory provision which led to that issue coming before this court: Vavilov, at para. 33. In this case, s. 6(1)(a) of the CJA is the relevant provision, as the Tenants obtained leave to appeal the Divisional Court order pursuant to it.
[75] Section 6(1)(a) provides that an appeal lies to this court from an order of the Divisional Court, with leave, “on a question that is not a question of fact alone”. Thus, when an appeal comes before this court pursuant to s. 6(1)(a) of the CJA, the appeal can be on a question of law and/or on a question of mixed law and fact. The only limitation is that the question cannot be one of fact alone. Because the legislation does not indicate what standard of review this court is to apply on appeals heard pursuant to s. 6(1)(a), it is necessary to characterize the nature of Issue 2 to determine what standard of review applies. Thus, the question becomes, does Issue 2 raise a question of law or a question of mixed law and fact? If the former, the correctness standard of review applies. If the latter, absent an extricable error in principle, deference is owed to the Divisional Court decision.
[76] As I explain below, Issue 2 raises a question of law. Therefore, this court must review the Divisional Court decision on the Purchasers’ potential liability on a correctness standard.
B. Analysis
[77] The Tenants’ appeal to the Divisional Court required that court to determine whether the Board committed errors on questions of law. The Divisional Court dismissed the appeal on the basis that the Board made no such errors. However, as I have explained, the Board did err on questions of law by, among other things, failing to address the Purchasers’ potential liability. It was an error of law for the Divisional Court to fail to identify and address that Board error of law. . Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP
In Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP (Ont CA, 2024) the Ontario Court of Appeal considered an appellate motion to quash an appeal, which appeal was from a successful Construction Act (CA) summary judgment [under CJA R20].
Here the court considers competing appeal routes:[5] In the motion now before this court, Arcamm seeks an order quashing the Queen appeal for want of jurisdiction (the “Motion”). It submits that the Judgment is a final order captured by s. 71 of the Construction Act and, therefore, Queen’s appeal lies to the Divisional Court, not to this court. Section 71 provides that “an appeal lies to the Divisional Court from a judgment or an order on a motion to oppose confirmation of a report under this Act.”
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[11] Arcamm submits that Queen’s appeal lies to the Divisional Court, pursuant to s. 71 of the Construction Act, and this court is without jurisdiction to hear it. It relies on the fact that its Claim was brought pursuant to the Construction Act and arose from unpaid invoices for which it registered a construction lien. It also relies on caselaw from this court which states that no right of appeal lies to it on a Construction Act matter.
[12] Queen submits this court has jurisdiction to hear its appeal. It notes that, in granting Judgment, the motion judge acted pursuant to r. 20 and r. 20 motions are not provided for in the Construction Act. Rather, r. 20 is promulgated pursuant to the Courts of Justice Act, R.S.O. 1990, c. C. 43. Further, the Judgment was based on Arcamm’s non-statutory claim in contract. Therefore, because the Judgment is a final order of a judge of the Superior Court of Justice, pursuant to s. 6(1)(b) of the Courts of Justice Act, this court has jurisdiction to hear the appeal.
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[13] I accept Queen’s submission for two reasons.
[14] First, the fact the Claim is styled as a proceeding under the Construction Act does not mean that the Construction Act automatically governs the appeal route. The jurisdiction of the court is governed by the substance of the order made: Dal Bianco v. Deem Management Services Limited, 2020 ONCA 585, 82 C.B.R. (6th) 161, at para. 11, quoting RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906, 33 C.B.R. (6th) 9, at para. 12. In Dal Bianco, the appeal of a Construction Act claim lay to this court because the substance of the order under appeal related to proceedings authorized by the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.
[15] In this case, the Judgment was not made under the Construction Act. On the contrary, the motion judge refused to grant relief under that Act. Instead, the source of the motion judge’s jurisdiction was r. 20, a rule promulgated pursuant to the Courts of Justice Act.
[16] Further, the relief granted was based on a claim for damages in contract for unpaid invoices, a non-statutory cause of action. The grounds of appeal highlight the significance of this point. Queen’s primary ground of appeal is its contention that the motion judge erred in failing to find a genuine issue requiring a trial, specifically by failing to consider the defence of contributory fault and whether Arcamm’s conduct caused or contributed to the same damages claimed in contract. Self-evidently, these issues are not matters governed by the Construction Act; they are specific to the application of the test under r. 20.
[17] Second, the cases on which Arcamm relies are fundamentally different from the present case. Arcamm referred to cases including Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 2001 CanLII 7060 (ON CA), 54 O.R. (3d) 76 (C.A.); Great Northern Insulations Services Ltd. v. King Road Paving and Landscaping Inc., 2021 ONCA 367, 156 O.R. (3d) 1; and Soo Mill and Lumber Company Ltd. v. Possebon et al., 2023 ONCA 215. However, all of these cases proceeded to trial on the construction lien track under the Construction Act. In this case, r. 20 was the source of the court’s jurisdiction below; the Judgment was not made in reliance on the Construction Act.
[18] As the Judgment flowed from a r. 20 determination, Queen’s appeal lies to this court. . Canada (Attorney General) v. Georgiou
In Canada (Attorney General) v. Georgiou (Ont CA, 2023) the Court of Appeal considered motions for both leave to appeal, and a direct appeal, under the Mutual Legal Assistance in Criminal Matters Act brought by a mother seeking assets forfeited by a US criminal court against the son. The underlying procedure was a relief from forfeiture against 'forfeiture of property' proceeding under CCC 462.42.
In this quote, the court the considers which appeal provisions apply where the MLCMA adopts provisions from the CCC and both have appeal authority, though one requiring leave and the other not ('as of right'):[32] Section 35 of the Act provides:An appeal lies, with leave, on a question of law alone, to the court of appeal, within the meaning of s. 2 of the Criminal Code, from any order or decision of a judge or a court in Canada made under this Act, if the application for leave to appeal is made to a judge of the court of appeal within fifteen days after the order or decision. [Emphasis added.] [33] As Strathy C.J.O. stated in Viscomi, at para. 11, the key question for determining the applicability of this provision is whether the order of the application judge was made “under” the Act.
[34] On its face, s. 35 is directly applicable to Loukia’s proposed appeal. The relief sought by Loukia from the application judge was expressly sought under the Act, and his decision denying that relief would therefore be an order or decision under the Act.
[35] Loukia argues, however, that the application judge’s order was made under s. 462.42(4) of the Criminal Code, entitling her to an appeal as of right. She relies on the parties’ agreement before the application judge that ss. 462.42(1) and (4) governed the application. Section 462.42(5) of the Criminal Code provides that an applicant or the Attorney General may appeal to the Court of Appeal from an order made under s. 462.42(4). In Loukia’s submission, the Act incorporates this appeal route pursuant to s. 9.4(9). For ease of reference, I set out the relevant text of that provision here:Subsection 462.41(3) and section 462.42 of the Criminal Code apply, with any modifications that the circumstances require, to a person who claims an interest in proceeds of crime…. [Emphasis added.] [36] I do not accept Loukia’s submission because, in my view, the application judge’s order was made “under” the Act within the meaning of s. 35, not under the Criminal Code.
[37] The parties’ agreement before the application judge, that certain Criminal Code provisions governed, was relevant to ascertaining the criteria that Loukia had to satisfy to obtain relief under the Act. It did not mean that her application, or any resulting order, was made other than under the Act. It could not alter the appeal route from a decision on her application.
[38] Nor do the references to the Criminal Code provisions in s. 9.4(9) of the Act assist Loukia’s argument, when s. 9.4(9) is properly interpreted. Read in context with the rest of s. 9.4, the purpose of s. 9.4(9)’s reference to Criminal Code provisions is to provide individuals who have valid interests in property subject to foreign forfeiture orders with similar, but not identical, relief proceedings as those found in the Criminal Code for individuals who have valid interests in property subject to domestic forfeiture orders. Recognizing that the procedure for enforcing foreign forfeiture orders does not mirror domestic proceedings, and that different interests exist in each context, the text of s. 9.4(9) expressly provides that the Criminal Code provisions apply, subject to “any modifications that the circumstances require”. This qualification clearly suggests that not every component of these Criminal Code provisions may be applicable.
[39] Section 9.4(9) must be interpreted by examining the statutory text in its entire context and in its grammatical and ordinary sense, in harmony with the statute’s schemes and objects: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. And given that the Act is domestic legislation enacted for the purpose of implementing Canada’s international obligations, the provision should be interpreted purposively with a view to fulfill these obligations: National Corn Growers Assn v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324, at p. 1371. As this court stated in United Kingdom v. Ramsden (1996), 1996 CanLII 1527 (ON CA), 108 C.C.C. (3d) 289 (Ont. C.A.), at p. 304, leave to appeal refused, [1996] S.C.C.A. No. 443, one of the purposes of the Act is to “provide the widest measure of mutual legal assistance in criminal matters in a prompt and efficient manner”.
[40] Providing limited appeal routes is one manner in which this purpose is achieved. Reading the language of s. 9.4(9) as not incorporating the Criminal Code appeal provisions is consistent with the objects of the Act, and with the Act as a whole, given the unambiguous language of s. 35 that requires leave to appeal for any order or decision made under the Act.
[41] Accordingly, I conclude that Loukia’s proposed appeal falls within s.35 of the Act and that she may appeal only if she satisfies the test for leave in s. 35. . Goberdhan v. Knights of Columbus
In Goberdhan v. Knights of Columbus (Ont CA, 2023) the Court of Appeal considered Arbitration Act [s.7(6): 'no appeal of court stay of court proceedings where arbitration'], and which statute the appeal jurisdiction lay in the case of conflict between multiple appeal jurisdictions:(1) Jurisdiction to hear the appeal
[6] The respondent relied on s. 7(6) of the Arbitration Act as foreclosing an appeal of the motion judge’s decision. Section 7(6) states that “there is no appeal from the court’s decision” on a motion to stay brought under section 7(1) of the Act. The respondent asserted that the appellant’s motion was brought under s. 7(1) and that the motion judge, after determining that there was an absence of consideration for the agreements containing a mandatory arbitration clause, concluded that the arbitration agreements were invalid and dismissed the motion under s. 7(2). The respondent relied on a statement from the Supreme Court’s decision in TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144, at para. 91:Given the absence of any qualifying language, s. 7(6) must be taken as referring to a “decision” made under any subsection contained in s. 7 [and] would include, for example, a decision to stay the proceeding under s. 7(1), a decision to refuse a stay under s. 7(2), or a decision to order a partial stay under s. 7(5). [7] We did not give effect to this argument.
[8] The fact that the appellant brought its stay motion relying on the Arbitration Act, and that the motion judge’s determination was that the arbitration agreement was “invalid” under s. 7(2), are not determinative. In Huras v. Primerica (2000), 2000 CanLII 16892 (ON CA), 137 O.A.C. 79 (C.A.), this court stated that, where a court finds that there is no arbitration clause (in that case because the clause was unconscionable), the Arbitration Act has no application, and the dispute lies beyond the scope of s. 7: at paras. 9-10. The court noted that “it follows that if the court has decided that the Act is not applicable, then the prohibition against an appeal in s. 7(6) is equally not applicable”: at para. 10.
[9] The authority of Huras, and the jurisprudence that followed it, was recently confirmed by a five-judge panel of this court in Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612, at paras. 3-8. In that case, Jamal J.A. (as he then was) addressed and rejected the argument made here, that Wellman changed the law in respect of the scope and application of s. 7(6). He concluded that Wellman “did not disturb the Huras line of cases on the interpretation of s. 7(6)”, and that “the Huras line of cases was correctly decided”: at para. 6. . Urbancorp Inc. v. 994697 Ontario Inc.
In Urbancorp Inc. v. 994697 Ontario Inc. (Ont CA, 2023) the Court of Appeal considered a novel appeal situation where active litigation, arguing OBCA oppression breaches (and more), had been assigned by a CCAA 'monitor' (akin to a receiver) to creditors. When an interlocutory appeal arose that required a decision of which appeal jurisdiction should govern [ie. the CJA s.19(1)(b), OBCA s.255 or the CCAA s.13] (the immediate concern was whether leave to appeal was required) the court has to address it:[9] The correct analytical framework to be followed in determining whether an order requires leave to appeal under s. 13 of the CCAA was set out by Brown J.A., sitting as a single motions judge, in Essar Steel Algoma (Re), 2016 ONCA 138, 33 C.B.R. (6th) 172. He advanced a purpose-focused inquiry that was informed by the legislative purpose underlying the s. 13 leave requirement and reflected in his survey of Canadian cases.
[10] As Brown J.A. concluded, the leave requirement in s. 13 reinforces the CCAA goal of enabling a company to deal with creditors while carrying on business by resolving matters and obtaining finality without undue delay: Essar, at para. 20. As a result, the words, “made under this Act” in s. 13 must be given a broad interpretation to achieve the Act’s legislative purpose: Essar, at para. 22.
[11] Brown J.A. very helpfully set out a summary of relevant indicia for an appellate court to consider when determining whether an order requires leave to appeal under s. 13 of the CCAA, at para. 34:To aid that purpose-focused inquiry, the case law has identified some indicia about when an order is “made under” the CCAA. In [Redfern Resources Ltd. (Re), 2011 BCCA 333, 94 C.B.R. (5th) 53], Tysoe J.A. stated a court should ask whether the order was “necessarily incidental to the proceedings under the CCAA” or “incidental to any order made under the CCAA”: at paras. 9 and 10. In [Monarch Land Limited v. CIBC Mortgages Inc., 2014 ABCA 143, 575 A.R. 46], O'Brien J.A. looked at whether the order required the interpretation of a previous order made in the CCAA proceeding or involved an issue that impacted on the restructuring organization of the insolvent companies: at paras. 8 and 15. As mentioned, in [Sandhu v. MEG Place LP Investment Corporation, 2012 ABCA 91], Paperny J.A. stated that s. 13 of the CCAA would apply if “CCAA considerations informed the decision of and the exercise of discretion by the chambers judge” or “if a claim is being prosecuted by virtue of or as a result of the CCAA”: at paras. 16 and 17. [Emphasis added.] See also: Hemosol Corp. Re, 2007 ONCA 124, 31 CBR (5th) 83.
[12] This framework is also consistent with and similar to the approach followed by this court and the Supreme Court of Canada in determining whether leave to appeal should be granted under other statutes with similar language and similar legislative purpose: see, for example, 1) with respect to leave to appeal provisions under the BIA: Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, 69 C.B.R. (6th) 13; Dal Bianco v. Deem Management Services Ltd., 2020 ONCA 585, 82 C.B.R. (6th) 161; Ting (Re), 2021 ONCA 425, 90 C.B.R. (6th) 32, leave to appeal refused, [2021] S.C.C.A. No. 307; Rusinek & Associates Inc. v. Arachchilage, 2021 ONCA 112, 87 C.B.R. (6th) 1; and 2) with respect to the leave provisions under the Canada Business Corporations Act, R.S.C. 1985, c. C-44 (“CBCA”) and the OBCA: Kelvin Energy Ltd. v. Lee, 1992 CanLII 38 (SCC), [1992] 3 S.C.R. 235 (CBCA); Ontario Securities Commission v. McLaughlin, 2009 ONCA 280, 75 C.P.C. (6th) 26; and 1186708 Ontario Inc. v. Gerstein, 2016 ONCA 905 (OBCA).
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[20] Where the jurisdiction of a court emanates from both the CCAA and another statute, it is unhelpful to deconstruct the proceedings to determine which elements of the case fall under the CCAA and therefore require leave. Rather, as Paperny J.A. noted in Sandhu, at para. 17, “if a claim is being prosecuted by virtue of or as a result of the CCAA, section 13 applies.”
[21] In McLaughlin, this court followed the same broad approach in determining whether an order dismissing a motion to amend a statement of defence was made under the OBCA such that s. 255 required the appeal to proceed before the Divisional Court. O’Connor A.C.J.O. rejected the appellant’s argument that the order dismissing his motion was made under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and not the OBCA, so s. 255 of the OBCA did not apply, and as an appeal of a final order, the appeal would properly lie to the Court of Appeal under the Courts of Justice Act, s. 6(1)(b): at para. 12. In dismissing this argument, O’Connor A.C.J.O reasoned that the power exercised by the motion judge was “sufficiently ‘close’” to a legislative source under the OBCA, “namely, the power to adjudicate on oppression claims under s. 248” and that, “[i]mplicit in that power is the authority to allow or deny certain claims and defences”: at para. 16. He also relied on the same policy grounds that are applicable to CCAA proceedings, concluding that his interpretation was consistent with the legislative purpose of providing “a fast and effective remedy”: at para. 18.
[22] The appellants rely on McLaughlin and argue that the case at hand is distinguishable because it dealt only with an appeal of an order made under the OBCA, whereas this appeal involves claims based on both the CCAA and the OBCA, and the order to strike pleadings was made based on the court’s inherent jurisdiction to control its own process, as codified in the Courts of Justice Act. While the court held that the legislative power exercised by the motion judge in McLaughlin was “sufficiently close” to the OBCA, the appellants argue that because the order on appeal in this case involves the adjudication of claims under two statutes and a final order made under a common law power, it does not meet the “sufficiently close” test set out in McLaughlin. Specifically, the appellants contend that since the dismissal of the oppression remedy addresses a defence under the OBCA alongside the underlying CCAA proceedings, the appeal does not arise from the exercise of a legislative power that is “sufficiently close” to either the CCAA or the OBCA to constitute an appeal of a decision made under either Act. Accordingly, the appellants argue that their appeal lies properly to this court under the Courts of Justice Act.
[23] We disagree. The struck pleadings are connected to the knowledge of the Foreign Representative to whom the claim was assigned. They are aimed specifically at the transfers at undervalue, which is directly connected with the Urbancorp Companies’ insolvency and the creditors’ claims under the CCAA. Moreover, the order striking the paragraphs potentially impacts the restructuring under the CCAA as it defines the scope of available defences in relation to the s. 96 BIA claims. Circumscribing the breadth of the defence may impact the potential success of the insolvency-related causes of action and the resulting recovery on the part of the creditors. The tangential impacts on the oppression remedy defence referenced by the appellants do not affect our conclusion that the appeal is of a decision made under the CCAA.
[24] We therefore conclude that the appeal fits within the scope of the CCAA, and as such, the appellants require leave to appeal under s. 13 of the CCAA.
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