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Appeal - Re-constitution of the CourtThis infrequent issue occurs typically with complex appeals - say an interlocutory order being appealed to the Divisional Court, and a related final order being appealed to the Court of Appeal (and somebody doesn't seek the appropriate leave required) - and where the intended 'combination' of appeals procedures [under CJA 6(2) and 19(2)] don't technically work for some reason. In those cases an appellate court can consider 're-constituting' itself [under CJA 13(2) and 18(3)] as, literally, another court. After all, they're all Superior Court judges.
. 2582376 Ontario Inc. v. 2227418 Ontario Inc.
In 2582376 Ontario Inc. v. 2227418 Ontario Inc. (Div Ct, 2022) the Divisional Court, sitting as a single judge [Masterson J], skillfully handles a desperately complex procedural appeal mess, which is resolved by re-constituting the court as a single judge of the Superior Court [para 21]. If you want to test your mastery of the appeal rules, I recommend this case.
. Bernard Property Maintenance v. Taylor
In Bernard Property Maintenance v. Taylor (Ont CA, 2019) the Court of Appeal held that the review route for setting aside an order of a single judge of the Divisional Court is with a motion to a panel of that court [under CJA 21(5)]. Nonetheless the court re-constituted itself as a Divisional Court panel "with the assent of the Chief Justice of the Superior Court of Justice and the consent of the parties" and heard the appeal:A. Appeal Improperly Brought in this Court
[1] This appeal from a single judge of the Divisional Court came before us sitting as a panel of the Court of Appeal. At the outset we asked the parties to address the jurisdiction of this court to hear the appeal. Mr. Taylor argued that appeal lay to this court pursuant to s. 6(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[2] I disagree. A line of authority establishes that the proper process to set aside or vary a decision of a single judge of the Divisional Court is a motion pursuant to s. 21(5) of the CJA before a panel of the Divisional Court. Mr. Taylor’s appeal was improperly filed in this court.
[3] In Overseas Missionary Fellowship v. 578369 Ontario Ltd. (1990), 1990 CanLII 6771 (ON CA), 73 O.R. (2d) 73, Morden A.C.J.O. held the appeal routes within the Divisional Court should “take precedence over and exclude the general terms of” the provisions governing appeal to this court, currently at s. 6(1) of the CJA: at p. 75. More recently, in Alliance to Protect Prince Edward County v. Ontario (Environment and Climate Change), 2018 ONCA 576, 17 C.E.L.R. (4th) 167, Lauwers J.A. observed that “the structure of the [CJA] requires a person to exhaust the remedial jurisdiction of the Divisional Court before coming to the Court of Appeal”: at para. 13. In Coote v. Ontario (Human Rights Commission), 2010 ONCA 580, this court summarily quashed an appeal of an order of a single judge of the Divisional Court to the Court of Appeal, stating, “The appellant’s proper appeal route is to a panel of the Divisional Court on a motion under s. 21(5) of the Court of Justice Act”: at para. 2.
[4] The reconstitution of a panel of this court as a panel of the Divisional Court is an action that is practically abandoned: P.M. v. M.A., 2017 ONCA 6, at para. 6. However, in the unusual circumstances that this court granted Mr. Taylor leave to appeal, a stay of the order below, and an extension of time, we reconstituted ourselves as a panel of the Divisional Court to hear and determine the matter as if it were a motion brought under s. 21(5) of the CJA with the assent of the Chief Justice of the Superior Court of Justice and the consent of the parties. . Wright v. Strauss
In Wright v. Strauss (Ont CA, 2019) the Court of Appeal dealt with a knotty appeal route jurisdictional issue. Following the reasoning along is good exercise!:[1] The appellant appeals from the order (“Order”) of the motion judge, dismissing the application he commenced in 2016 against his daughters, on their own behalf and as trustees of the Wright Family Trust (“Trust”). For the reasons that follow, we conclude that this court does not have jurisdiction to hear this appeal, and we order that this appeal be transferred to the Divisional Court.
[2] The appellant also appealed from a second order (“Second Order”) of the motion judge, made at the same time, involving the same parties, and addressed in the same set of reasons as the Order. The appeal of the Second Order was properly made to this court and we dismissed that appeal: Wright v. Urbanek, 2019 ONCA 823.
[3] Pursuant to s. 255 of Ontario’s Business Corporations Act, R.S.O. 1990, c. B.16, as amended, (“OBCA”), an appeal lies to the Divisional Court from an order made under the OBCA. The Order finally resolved issues in an oppression application brought under the OBCA and the proper route of appeal is to the Divisional Court: Ontario Securities Commission v. McLaughlin, 2009 ONCA 280, 248 O.A.C. 54, at para. 16.
[4] While the appellant concedes that an appeal from the Order would normally be to the Divisional Court, he asserts that s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, and r. 6.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, permit this court to hear his appeal of the Order. Alternatively, he argues that this is one of those exceptional cases where it would be appropriate for Chief Justice of the Superior Court of Justice to designate this court as a panel of the Divisional Court for the purpose of hearing and determining the appeal.
[5] We reject these arguments.
[6] First, s. 6(2) of the Courts of Justice Act permits this court to hear and determine an appeal that lies to the Divisional Court if an appeal in the same proceeding lies to and is taken to this court. But the two appeals are not in the same proceeding. Although the motion judge released only one set of reasons, he issued two orders for two factually related but legally distinct proceedings, each with its own originating process: the Order, striking a notice of application regarding the transfer of a mortgage from a family company to the Trust; and the Second Order, striking a statement of claim challenging the validity of the Trust.
[7] Second, r. 6.01(1) provides that “[w]here two or more proceedings are pending in the court” the court may, in the circumstances set out in that rule, order that the proceedings be heard together. However, this rule applies to proceedings in the same court, not proceedings in different courts: Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839, at para. 11.
[8] Finally, while the combined effect of ss. 13 and 18 of the Courts of Justice Act enables three judges of the Court of Appeal to sit as a panel of the Divisional Court with the consent of the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario, as Trotter J.A. notes in Tomec, at para. 14, this court rarely reconstitutes itself as the Divisional Court. Doing so involves bypassing the Divisional Court. We are not persuaded that this is one of those rare instances where this court should reconstitute itself as the Divisional Court.
[9] This is not a case where the jurisdictional issue was noticed only after the appeal had been argued: see Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 2001 CanLII 7060 (ON CA), 54 O.R. (3d) 76 (C.A.), at para. 12. Here, the court notified the parties of the potential jurisdictional problem nearly four months before the scheduled hearing date and advised them that it is not this court’s practice to take jurisdiction to hear an appeal if it concludes that the appeal was brought in the wrong court. The parties made no submissions to the court in response to the court’s letter notifying the parties of the potential jurisdiction problem.
[10] Moreover, it is not clear that the delay resulting from a transfer of the appeal of the Order to the Divisional Court will result in any “real” delay. In oral submissions, counsel for both parties agreed that if the appellant prevailed on his appeal from the Order, his application should be stayed pending completion of the steps remaining to be taken pursuant to the order of Conway J., dated October 7, 2016, made in the oppression application brought against the appellant by his daughters. . Punit v Punit
In Punit v Punit (Ont CA, 2014) an appellant appealed to the Court of Appeal from an Order issued under the Partition Act, despite that Act providing for appeal of such orders to the Divisional Court. While s.6(2) of the Courts of Justice Act provides that the Court of Appeal may assume full jurisdiction in appeals or two or more Orders where the statutory appeal routes are different for different orders, here only one order was being appealed. The Court of Appeal nonetheless assumed jurisdiction as 'designate' of the Chief Justice of the Superior Court (of which the Divisional Court is a branch).
. Bernard Property Maintenance v. Taylor
In Bernard Property Maintenance v. Taylor (Ont CA, 2019) the Court of Appeal held that the normal review route for setting aside an order of a single judge of the Divisional Court is with a motion to a panel of that court [under CJA 21(5)]. However, on the unusual procedural facts of the appeal case, the court re-constituted itself as a CJA 21(5) Divisional Court panel "with the assent of the Chief Justice of the Superior Court of Justice and the consent of the parties" and heard the appeal nonetheless. The court makes the interesting point [at para.3] that the Divisional Court appeal (and set-aside) provisions should be exhausted before continuing to the Court of Appeal:A. Appeal Improperly Brought in this Court
[1] This appeal from a single judge of the Divisional Court came before us sitting as a panel of the Court of Appeal. At the outset we asked the parties to address the jurisdiction of this court to hear the appeal. Mr. Taylor argued that appeal lay to this court pursuant to s. 6(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[2] I disagree. A line of authority establishes that the proper process to set aside or vary a decision of a single judge of the Divisional Court is a motion pursuant to s. 21(5) of the CJA before a panel of the Divisional Court. Mr. Taylor’s appeal was improperly filed in this court.
[3] In Overseas Missionary Fellowship v. 578369 Ontario Ltd. (1990), 1990 CanLII 6771 (ON CA), 73 O.R. (2d) 73, Morden A.C.J.O. held the appeal routes within the Divisional Court should “take precedence over and exclude the general terms of” the provisions governing appeal to this court, currently at s. 6(1) of the CJA: at p. 75. More recently, in Alliance to Protect Prince Edward County v. Ontario (Environment and Climate Change), 2018 ONCA 576, 17 C.E.L.R. (4th) 167, Lauwers J.A. observed that “the structure of the [CJA] requires a person to exhaust the remedial jurisdiction of the Divisional Court before coming to the Court of Appeal”: at para. 13. In Coote v. Ontario (Human Rights Commission), 2010 ONCA 580, this court summarily quashed an appeal of an order of a single judge of the Divisional Court to the Court of Appeal, stating, “The appellant’s proper appeal route is to a panel of the Divisional Court on a motion under s. 21(5) of the Court of Justice Act”: at para. 2.
[4] The reconstitution of a panel of this court as a panel of the Divisional Court is an action that is practically abandoned: P.M. v. M.A., 2017 ONCA 6, at para. 6. However, in the unusual circumstances that this court granted Mr. Taylor leave to appeal, a stay of the order below, and an extension of time, we reconstituted ourselves as a panel of the Divisional Court to hear and determine the matter as if it were a motion brought under s. 21(5) of the CJA with the assent of the Chief Justice of the Superior Court of Justice and the consent of the parties.
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