|
Appeals - Notice of Appeal. Salih v. Lacroix [important]
In Salih v. Lacroix (Div Court, 2023) the Divisional Court considered RCP 61.08(2) which provides that only issues raised in the notice of appeal may be argued, barring permission of the court:[4] Last week, the Landlord notified the Tenants that he was seeking to put forward a new argument. The Tenants objected, relying on the provisions of Rule 61.08(2) of the Rules of Civil Procedure, which state that “no grounds other than those stated in the notice of appeal ... may be relied on at the hearing, except with leave of the court hearing the appeal”. They also argued that we should not grant leave in this instance, as the Board was entitled to appear on this appeal and chose not to do so after having reviewed the material file by the Landlord. The Board might have made a different decision if it had been given notice of the new ground raised.
[5] We agree with the Tenants that leave to argue the new ground should not be granted. First, the Board never had the opportunity to consider or address this ground at first instance. Second, it has also been denied the opportunity to address the ground on appeal. It is no answer to say that the way to remedy this problem is to adjourn the appeal. . T.O. Estate v. D.O.
In T.O. Estate v. D.O. (Ont CA, 2023) the Court of Appeal set out a test for amending a Notice of Appeal, here after perfection:The Test to Amend
[7] The factors germane to whether leave to amend a notice of appeal should be granted after an appeal has been perfected were set out by Cronk J.A. in Yar v. Yar (2012), 24 R.F.L. (7th) 101 (Ont. C.A.), at paras. 14-15. They are: (1) whether the appellant formed an intention to appeal within the relevant time period; (2) the length of and any explanation for the delay; (3) any prejudice to the respondent; (4) the merits of the appeal; and (5) the justice of the case. . Manafa v. Tannous
In Manafa v. Tannous (Div Court, 2023) the Divisional Court considered what can be characterized as the 'appeal pleadings', that is the "(a) the relief sought;" and the "(b) the grounds of appeal" as required in the Notice of Appeal [by R61.04(3)]:[31] In oral argument, I pressed the Appellant to direct me to where she had specifically identified these issues as being included in her Notice of Appeal. The Appellant was only able to point to the following paragraph from her Notice of Appeal as identifying that these issues (which were her counterclaim) were also being appealed:4. That this Honourable Court grant the Appellant all the remedies she is entitled to under the Consumer Protection Act and common law. [32] Rule 61.04(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states that the Notice of Appeal shall set out the relief sought and the grounds of appeal. Rules 61.08(2) and (3) state that both the argument advanced on appeal and the relief that an appellate court may grant are limited to what is set out in the Notice of Appeal. It is possible that a defect in the Notice of Appeal may prevent a party from arguing a specific issue on appeal. See Markowski v. Verhey 2020 ONCA 472 at paras 20-25.
[33] In this case, given the lack of notice in respect of the Respondent’s claim in the Notice of Appeal, there are real concerns as to whether it would be prejudicial to require the Respondent to address the issues arising from the Defendant’s claim in this appeal and real concerns about whether those questions are properly before me in any event. However, it is not necessary for me to decide this question.
[34] Assuming, without deciding, that these issues are properly before the Court, I conclude that there is no basis to interfere with the Deputy Judge’s decision on these issues either. His conclusions are findings of fact, and as a result are only open to challenge if he made a palpable and overriding error. He did not do so.
|
