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Appeals - Only One Kick at the CanI 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.
. 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.
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