|
Appeals - Practice. Canada (Attorney General) v. Canadian Civil Liberties Association
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
Here the court slaps the Saskatchewan AG for extending beyond their role as an intervenor, and notes the role of an appeal court to avoid issues "not necessary to resolve an appeal":[478] The Attorney General of Saskatchewan contends that the Government of Canada can only freeze bank accounts in accordance with due process of law, and that the absence of even minimal procedural protections in the Economic Order as a precondition to the freezing of someone’s bank account means that due process was not accorded to affected individuals in this case.
[479] However, the Attorney General of Saskatchewan is not a party to this proceeding: it is an intervener. As such, its role is to make useful and different submissions on the issues that are before the Court and not to raise new issues: R. v. McGregor, 2023 SCC 4. Indeed, as this Court stated in Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 174 at para. 55, "“interveners are guests at a table already set with the food already out on the table. Interveners can comment from their perspective on what they see, smell and taste. They cannot otherwise add food to the table in any way”". See also Macciacchera (Smoothstreams.tv) v. Bell Media Inc., 2023 FCA 180 at para. 20.
[480] The role of courts is, moreover, to decide the issues that are raised by the parties. They should not decide issues of law that are not necessary to resolve an appeal: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, [1995] S.C.J. No. 36 at para. 6. Indeed, we would be going beyond our proper role if we were to decide the Bill of Rights issues in these circumstances, and we decline to do so. . Cineplex Inc. v. Commissioner of Competition
In Cineplex Inc. v. Commissioner of Competition (Fed CA, 2026) the Federal Court of Appeal dismissed a Competition Act appeal, here brought against a Competition Tribunal finding that the appellant had "engaged in reviewable conduct by making pricing representations to the public that were false or misleading in a material respect" [CA ] - and issued a cease order, an administrative fine and costs.
Here the court cautions about parties attempting to re-phrase appeal issues in order to make them sound like questions or errors of law':[26] That said, this Court has cautioned against grounds of appeal being "“expressed in an artful way to make them appear to raise legal questions when they do not”": Bell Canada v. British Columbia Broadband Association, 2020 FCA 140 at para. 51; Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79 at para. 29. As will be explained further on in these reasons, the issues in this appeal relate primarily to the Tribunal’s fact-specific application of the law to Cineplex’s conduct, matters that merit significant deference. . Rahimi v. Lafonte
In Rahimi v. Lafonte (Ont Div Ct, 2026) the Ontario Divisional Court quashed an LTB appeal. These extracts illustrate the potentially broad use of the R2.1.01 "frivolous or vexatious or otherwise an abuse of the process of the court" provision, here including use against basic procedural flaws such as:- "an appeal where the rules clearly provide that leave to appeal is required",
- the appeal required that the appellant "must bring a motion for an extension of time".
The court states:[6] Rule 2.1.01 allows for the determination of whether the action is frivolous or vexatious at the very outset of the action. The process is in writing without an evidentiary record. It is aimed at clear cases. The process is not for “close calls”. The action is to be dismissed pursuant to Rule 2.1.01 only if the frivolous, vexatious, or abusive nature of the proceeding is apparent on the face of the pleading: Scaduto v. LSUC, 2015 ONCA 733, at para. 8.
[7] Although proceedings which are clearly frivolous or vexatious on their face should not be permitted to proceed, care must be taken to ensure that a claim which includes a legitimate complaint is not summarily dismissed. As noted in Gao v. Ontario WSIB and Ontario Ombudsman, 2014 ONSC 6497, at para. 18:While rule 2.1 should be applied robustly to bring an early end to vexatious proceedings, the matters should not [be] considered lightly or dismissively. Care should be taken to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed. [8] The Court’s “task in deciding a motion brought pursuant to R. 2.1.01 is to look beyond drafting deficiencies to determine the nature of the Plaintiff’s complaint and whether that complaint is frivolous, vexatious or an abuse of process”: Mohammad v. McMaster University, 2021 ONSC 3494.
[9] The issue in the present case is not whether the appeal lacks merit, it is whether the Appellants may circumvent the rules of procedure and bring an appeal where the rules clearly provide that leave to appeal is required and that the appellants must bring a motion for an extension of time. The abuse of process in this case is an abuse of the procedural requirements.
[10] Section 133(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that leave to appeal is required from a consent order. Section 133(a) states:133 No appeal lies without leave of the court to which the appeal is to be taken,
(a) from an order made with the consent of the parties; [11] In Lou v. Abagi, 2018 ONSC 1587, the parties entered into a settlement agreement that was incorporated into a consent order requiring the tenant to vacate his rental unit. The tenant then sought to appeal the order. Peterson J. held that no consent order from the LTB may be appealed without leave of the Court:Section 133 of the Courts of Justice Act stipulates that no appeal lies from a consent order without leave of the court. The LTB termination order that is the subject of this appeal was made on consent of the parties, yet no leave has been obtained (or sought) by Mr. Abagi to bring the appeal. [12] Peterson J. declined to adjourn the proceedings to permit the appellant to bring a motion for leave to appeal and quashed the appeal for failure to seek leave, and because it was “manifestly devoid of merit” and constituted an abuse of process.
[13] Similarly, in Arnold v. Lulu Holdings Inc., 2021 ONSC 8125, Matheson J. was confronted with a case in which the consent itself was challenged or disputed. She concluded that leave to appeal was required, at paras. 34 – 37:This appeal should also be quashed because no leave to appeal has been sought or granted.
Section 133 of the Courts of Justice Act provides that no appeal lies, without leave, from an order made with the consent of the parties. The appellant submits that leave is not required in this case because the consent is disputed on the appeal.
The appellant relies on Ruffudeen-Coutts v. Coutts, 2012 ONCA 65, however, that case does not hold that leave is not required when the consent is challenged. It does provide a test for the granting of leave from a consent order where the consent is challenged.
On its face, the LTB order is a consent order. This is further confirmed by the recording of the hearing. The majority of the court in Ruffudeen-Coutts held that “where the issue relates to the validity of the consent, leave to appeal should not be granted unless the evidence before the court on the leave application demonstrates that there is an arguable case that, at the time the agreement that formed the basis of the consent order was entered into, the moving party could not or did not consent”: at para. 64 (per Epstein J.). Further, the adjudicator’s determination should attract deference and the threshold for granting leave is high: at paras. 69 and 72 (per Epstein J.). The court did not hold that leave to appeal was not required. See also: Morgan v. Whing, 2009 CarswellOnt 2927 (Div. Ct.), at para. 7, Eldebron Holdings Limited v. Mason, 2016 ONSC 2544, at para. 14; Singh v. Mylvaganam, 2018 ONSC 5955, at para. 2; Faulknor v. Li, 2025 ONSC 4415, at para. 7.
[14] In this regard, the decision of the Divisional Court in Trust Construction Corporation v. McKie, 2017 ONSC 4702, at para. 6 is germane:It is also a matter of concern that parties ought not to be easily able to revisit orders that have been made on consent. The effective resolution of matters that come before the Board will be greatly impaired if parties can continually seek to revisit issues that they have earlier agreed to resolve. [15] As Arnold makes clear, leave to appeal a consent order is required even if the consent itself is challenged or disputed. . Brown v. Brown
In Brown v. Brown (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a family law appeal, here brought against the refusal of a "request to rely on late-served documents at the trial", this in a context of non-compliance with case management directions by the requester.
Here the court usefully comments on the practice issue of labelling or numbering exhibits to "distinguish between documents tendered but not admitted into evidence, and the documents received in evidence":[12] Nothing turns on the mis-labelling of some of the Appellant’s documents on the Exhibit List. The optimal approach would have been to identify those documents as “lettered” Exhibits, rather than “numbered” exhibits, to distinguish between documents tendered but not admitted into evidence, and the documents received in evidence. See: 1162740 Ont. Ltd. v. Pingue (2017), 2017 ONCA 52 (CanLII), 135 OR (3d) 792 (CA) – the comments of the Court of Appeal in Pingue respecting documents not marked as numbered exhibits apply equally to documents found inadmissible: they should be marked in some fashion so that a reviewing court can identify – from the record – the documents in issue on the evidentiary ruling. .... . The Centre for Israel and Jewish Affairs v. Minister of Public Affairs and Business Delivery and Procurement
In The Centre for Israel and Jewish Affairs v. Minister of Public Affairs and Business Delivery and Procurement, (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here brought against a decision of "the Director under the Discriminatory Business Practices Act" (DBPA) which disagreed that provisions of "two agreements the University of Windsor entered into with student groups in the context of protest encampments on university property" violated the DBPA.
The case illustrates (what to me) is a frequent and obvious fairness violation - that of disregarding a written argument because the party "did not focus on this submission in oral argument". This fairness 'sin' may be committed in any of administrative tribunal, judicial review and appeal hearings, and - IMHO at the very least - requires the adjudicator to inquire of the submitting party whether they consent to the practice or not:[23] Although the University raised the question of prematurity in its written material, it did not focus on this submission in oral argument. We therefore decline to address it. . Rajaghatta v. Niranjan
In Rajaghatta v. Niranjan (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a CJA s.21(5) motion order panel review, here brought against related orders to dismiss an appeal for "failure to perfect".
Here the court summarizes typical appeal practice and process, including the role of appeal case management in a R2.1 frivolous and vexatious context:[3] Civil appeals in the Divisional Court generally follow a straightforward process. An appellant is required to perfect the appeal by filing the appeal record and factum. Responding parties file responding factums. Then the appeal may be heard.
[4] The appeal record is generally limited to the record that was before the trial court in respect to the order under appeal. With some exceptions, none of which apply in this case, the appeal is heard and decided by a panel of three judges of the Divisional Court.
[5] Case management in the Divisional Court aims to assist the parties to complete the process described above in order to schedule the hearing of the appeal. In a relatively straightforward appeal, such as the one in this case, case management should not require more than two or three simple email directions from the case management judge specifying the deadline for the appellant to deliver his appeal record, factum and required transcripts, and the deadline for the responding materials.
....
(b) R. 2.1, Case Management and Review Motions Pursuant to CJA, s.21(5)
[62] Prior to 2020, case management was the rare exception, rather than the rule, in the Divisional Court. The parties drive their own processes, with the Rules of Civil Procedure providing the structure for the process. Only if a party sought assistance from a judge by way of a motion would the court ordinarily intervene prior to a matter coming before a panel of the court.
[63] This all change when the COVID-19 pandemic required the court to take a hands-on approach to pre-hearing processes to adjust to conducting hearings virtually. This was borne of necessity at the time, but it also showed that case management led to a more efficient and effective process, with faster disposition of cases, and fewer expensive and time-wasting motions.
[64] Thus, now, judges are involved in Divisional Court cases shortly after those cases are initiated up to the time that they are scheduled for hearing before a panel. The task of the case management judge is to assist the parties to complete their pre-hearing preparation so that their matters are ready for a hearing on the merits. Where parties cooperate in this process, schedules may often be established and hearing dates identified within a few weeks of the matter commencing.
[65] Where parties do not cooperate, and particularly, where one party will not follow the court’s directions, and instead argues relentlessly with the court’s case management directions, a particular set of problems can develop that leads to cases being mired in pointless procedural conflict. Such a situation is not in the interests of the parties or the administration of justice, and so the court has developed two ways of dealing with the issue:1. Directing that objections to case management directions may be raised with the panel hearing the appeal or application; and
2. Where appropriate, disposing of procedural objections by recourse to r. 2.1. [66] The primary reason for these two approaches to addressing pointless and endless procedural conflicts during case management is s. 21(5) of the Courts of Justice Act.
[67] Subsection 21(5) provides:A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion. [68] Case management directions are treated as analogous to decisions on a motion – they have the same effect as decisions on motions – they result in orders – usually (but not always) interlocutory – and their effect can range from incidental (such as most orders directing particular deadlines) to significant (striking out impermissible materials, striking out grounds of appeal, or dismissing proceedings) – all things a motion judge could do on a motion. The operating principle here is that case management directions can be made where there is a sufficient basis in the information provided to the case management judge by the parties, and the issue is not one that should be left for the panel to decide at the hearing, or it is one that a reasonable litigant could not oppose. . Arapakota v. Imex Systems Inc.
In Arapakota v. Imex Systems Inc. (Ont CA, 2025) the Ontario Court of Appeal considered on appeal dismissing an application for delay.
Here the court alludes to the effect of not orally arguing matters that were advanced in the factum:[35] In their factum on this appeal, the appellants also claim that the respondents’ counsel was negligent, and that the cost order made by the motion judge was excessive. These issues were not raised by the appellants in oral argument, and in any event, on the basis of the written materials, we see no merit in these claims. . Henderson v. Wang [issuance of file numbers]
In Henderson v. Wang (Ont CA, 2025) the Ontario Court of Appeal considered a practice point regarding appeals, here in a family law context:[5] .... With respect to the factors of the length of and the explanation for the moving party’s delay in serving and filing the notice of appeal, I do not accept the moving party’s allegation that she was mistakenly advised by the court office that she had to wait for a court file number before she could serve the notice of appeal on the responding party.
[6] First, I am not persuaded that the court office would ignore the rules for the commencement of appeals: r. 61.04(1) of the Rules of Civil Procedure states plainly that an appeal to this court “shall be commenced by serving a notice of appeal…within 30 days after the making of the order appealed from” (emphasis added). Rule 61.04(4) clearly requires that the notice of appeal, with proof of service, shall be filed within 10 days after service. This is borne out by the March 27 email from court staff rejecting the notice of appeal because, among other deficiencies, there was no proof of service. Moreover, there is no provision in the Rules or this court’s Practice Directions for the service of a notice of appeal following the assignment of a court file number. . Stadnyk v. Thunder Bay (City)
In Stadnyk v. Thunder Bay (City) (Ont CA, 2025) the Ontario Court of Appeal considered an issue which - broadly - can create serious problems for both trial and review (both appellate and JR) practice, which is the chronic practice of the trial or reviewing court to disregard issues that are advanced in the 'paperwork' (ie. at trial in the Statement of Claim, and on review in the Notice and/or factum), but not at oral hearing - amounting to an implicit abandonment presumption.
The solution to the problem may be as simple as the court asking the parties whether they are abandoning the concerned claim/ground, whether they are relying on the paperwork and existing evidence only or otherwise - but at least it should be overtly addressed. In this case it may have prevented undue wastage of appellate time and energy, with minimal upfront effort:[4] Although the Statement of Claim included a claim for breach of contract, the claim was not argued before the motion judge and consequently, his decision does not analyze that claim. The parties disagree on whether there was consent to a claim in contract proceeding with the claim in negligence. The parties put their positions in writing before the motion judge for the settling of the order. In the result, the order certified only the claim in negligence.
[5] The appellant advances two main arguments on appeal: that the motion judge erred in declining to certify the claim in nuisance; and that he erred in not certifying the breach of contract claim. We are unable to accept either argument.
....
[8] As noted, the appellant seeks to have the breach of contract claim remitted to the Superior Court for determination on the issue of certification. She says, variously, that she and the respondent had agreed that the claim would be certified in contract; that the parties were “ships passing in the night” that misunderstood one another; and that when she referred to “duties” in relation to the common issues, this included not only duty of care in tort, but duties in contract as well. She says that the motion judge erred in preferring the position of the respondent over her position when the order was settled, without providing reasons.
[9] We do not accept these arguments. While it is clear that breach of contract was pled in the Statement of Claim, it is equally clear that when the matter went before the motion judge, this component was not argued, nor was the request to certify the proceeding in breach of contract even set out in the notice of motion. The appellant could not point to any evidence of consent to the contract claim, which is strenuously denied by the respondent. There was no consent filed with the court, no letter exchange, not even an email exchange documenting the purported agreement. There was no allegation of specific dates on which discussions had occurred if such agreement were oral. Further, the Statement of Claim referred only to “duties” in the context of the claim in negligence, not in the context of the claim in contract.
[10] There was no error in the motion judge’s decision in not addressing the contract claim – he would have had every reason to understand that the claim was not being pursued. Nor was there an error when settling the order. The order, as it should, confirmed what had been decided on the motion before him as explained in his reasons. . Veerasingam v. Licence Appeal Tribunal
In Veerasingam v. Licence Appeal Tribunal (Ont Divisional Ct, 2025) the Divisional Court dismissed an appeal, here from a "decision of the Licence Appeal Tribunal (LAT) ... requir[ing] that the Registrar of the respondent Ontario Motor Vehicle Industry Council (OMVIC) carry out its proposal to refuse the registration of the appellant as a motor vehicle salesperson under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sched. B (MVDA), due to misconduct".
Here the court plainly states it's policy that they only consider legal argument raised in the oral hearing, despite them being raised in the factum:[21] The appellant raised other issues in his factum that were not pursued either in the written outline of oral argument or in oral submissions and are therefore not addressed below. . Canadian Union of Skilled Workers v. Four Seasons Site Development Ltd.
In Canadian Union of Skilled Workers v. Four Seasons Site Development Ltd. (Div Court, 2024) the Ontario Divisional Court dismissed a union JR, here against an OLRB decision that "dismissed the Union’s application for a declaration that the respondents Four Seasons Site Development Ltd. (“Four Seasons”) and Westport Paving Inc. (“Westport”) are related entities and constitute one employer for labour relations purposes".
Here the court applies a common and accepted practice of both tribunals and courts, that is to disregard arguments made in writing (eg. in a factum) if they are not also advanced at the oral hearing:[35] The Union’s factum also challenges the reasonableness of the Decisions on other grounds, which I consider to be without merit. Since the Union did not advance those grounds in oral argument, they are not addressed further in the balance of these reasons. . Sun v. Canada (Attorney General)
In Sun v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal made the point that after an interlocutory order is dismissed, the correct procedure is to seek to appeal that decision, not to repeat the request anew in the context of a separate appeal - which the court referred to as a 'collateral attack':[7] The appellant submits that the Federal Court erred in refusing to admit certain additional evidence she offered that was not before the Agency when it made its decision. In submissions before us, the appellant referred to some new evidence. Among other things, the appellant pointed us to a revised income tax return that she filed after the Agency’s decision.
[8] We cannot consider this submission or the new evidence. This is because the Federal Court refused to admit the evidence by way of an interlocutory Order dated September 1, 2023. If dissatisfied with the Order, the appellant had to appeal it. She did not. As a result the Order is final and cannot be collaterally attacked in this separate appeal. . R. v. R.S.
In R. v. R.S. (Ont CA, 2024) the Ontario Court of Appeal illustrates yet again that appeal issues, although advanced in the factum, risk not being considered unless raised overtly in oral argument:[26] The appeal against conviction is dismissed. While the notice of appeal referred to other grounds of appeal of the conviction and an appeal against sentence, those were not pursued before us. . R. v. Dautruche
In R. v. Dautruche (Ont CA, 2024) the Ontario Court of Appeal illustrates what I think is an unfortunate common practice of appeal courts:C. Disposition
[27] For these reasons, the conviction appeal is dismissed. Although the appellant stated in his Notice of Appeal that he was also seeking leave to appeal sentence, the sentence appeal was not raised in his factum or addressed by his counsel at the hearing, from which we infer that he did not intend to pursue it. Leave to appeal sentence is accordingly denied. . Robertson v. Ontario
In Robertson v. Ontario (Ont CA, 2023) the Court of Appeal considered a joint submission by the parties on a class action certification appeal (with cross-appeal) - here where the parties agreed on the size of facta and compendium, and the time length of oral submissions:[6] I regard appellate advocacy as containing two components: (i) first, educating an appeal panel about a case; and then (ii) persuading the appeal panel to one’s client point of view on the various grounds of appeal.
[7] The main forensic device by which an advocate educates and persuades appeal judges about a case is the written factum, which provides an intelligible pathway through the associated appeal record. A factum affords counsel the opportunity to undertake an unhurried, comprehensive education of the judges in the salient facts of the case, the relevant principles of law (which may or may not be contested), the application of those principles to the facts and – most importantly – an assessment of whether the judge below erred in making factual findings, selecting legal principles or applying legal principles to the facts. As well, the factum contains a strong persuasive component, which builds on the educational foundation undertaken in its earlier parts.
[8] Oral argument proceeds in front of a panel who already have spent time educating themselves about the issues on the appeal and a party’s “pitch” on each issue through their study of the written factum and the associated appeal record. Based on that process of pre-hearing study, the judges on the panel will have formed views about the case, either identifying issues raised by the appeal materials on which they intend to seek clarification from counsel at the hearing or regarding the merits of the appeal as a whole. Given that pre-hearing study by a panel, the goal of effective oral advocacy is to engage the panel in rational persuasion, primarily by clarifying and satisfying any reservations that the judges may hold about aspects of the positions advanced by counsel’s client regarding the decision below.
[9] Since the advocate’s task of oral persuasion takes place after their earlier task of educating and attempting to persuade a panel through the written factum and appeal record, oral persuasion should consume less time than written education and persuasion. Accordingly, on a significant, law-intensive appeal such as this one, I usually see merit in allowing parties to file factums that exceed the standard 30-page limit on the expectation that permitting longer factums should result in the quid-pro-quo of a shorter oral hearing.
|
