Simon's Legal Resources

Appeals - Only One Kick at the Can

I spotted this theme recently. Logically, the 'several-kick' problem can only arise when there are at least two levels of appeal, as is the case with CJA 6(1)(a) situations [appeal from the Divisional Court], and not CJA 6(1)(b) cases [direct from the Superior Court]. It's worth watching in future, as are all these judicial 'conservation of energy' doctrines.

. Buck Estate v. Canada (Attorney General)

In Buck Estate v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the dismissal of "an appeal under Rule 51 [SS: 'Appeals of Associate Judges’ Orders'] of the Federal Courts Rules, S.O.R./98-106 from two decisions of an Associate Judge".

In this second appeal, Stratas JA cites case doctrine for the position that deference is to be accorded to the first level appellate ruling:

[3] Some might think that the Federal Court’s reasons dismissing the appeal from the Associate Judge are irrelevant and of no consequence because an onward appeal to this Court from the Federal Court is just a complete redo. On this view, appealing to this Court is like inserting another coin in a slot machine and pulling the lever again, hoping for a win.

[4] That’s not the case. Where the Federal Court "“appears to have given a complete answer”" to all the appellant’s arguments, the appellant bears "“a strong tactical burden”" in this Court "“to show…that the Federal Court’s reasoning is flawed”": Bank of Montreal v. Canada (Attorney General), 2021 FCA 189 at para. 4.

. Melburn-Kumar v. Kumar

In Melburn-Kumar v. Kumar (Ont CA, 2024) the Ontario Court of Appeal dismissed a rare 'second' appeal, here where the first partially-successful appeal (on consent) was to the Superior Court, but the appellant re-appealed to this court:

[4] In considering this rare second appeal as of right, the jurisprudence reminds this court of the “accentuated need to identify palpable and overriding error in factual matters before interfering at this second level of review”: Ares Law Professional Corporation v. Rock, 2017 ONCA 569, at para. 14.

. Lamba v. Mitchell

In Lamba v. Mitchell (Ont CA, 2022) the Court of Appeal considers that further appeals from the Divisional Court to the Court of Appeal are rare [under CJA s.6(1)(a), requiring leave]:

[17] An appeal lies to this court, with leave, from an order of the Divisional Court: Courts of Justice Act, R.S.O., c. C.43, s. 6(1)(a). A notice of motion for leave to appeal must be served within 15 days after the making of the order from which leave to appeal is sought: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r.61.03.1(3).

....

[19] The proposed appeal arises out of a decision of the Divisional Court exercising its appellate jurisdiction. I am mindful that appellate decisions of the Divisional Court are intended to be final: Sault Dock Co. v. Sault Ste. Marie (City) (1973), 1972 CanLII 572 (ON CA), 34 D.L.R. (3d) 327 (Ont. C.A.), at p. 328. A further appeal to this court is exceptional: Enbridge, at para. 19.