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Appeals - References. Martin v. 11037315 Canada Inc.
In Martin v. 11037315 Canada Inc. (Ont CA, 2025) the Ontario Court of Appeal allowed a motion to quash an appeal, here where the appeal was "from a reference under rr. 54 and 64.06 of the Rules of Civil Procedure" and available set asides had not yet been exhausted:[1] The appellant filed a notice of appeal seeking to set aside orders resulting from a reference under rr. 54 and 64.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The respondent seeks to quash the appeal on the basis that an appeal does not lie directly to this court from such orders. The appellant opposes the motion to quash and brings a cross-motion to extend time to perfect the appeal.
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[9] The respondent argues that r. 54 sets out the proper procedure governing appeals from rulings or orders resulting from references conducted under that rule. In particular, r. 54.05(3) provides that where a referee has made an order on a motion in a reference, a person who is affected by the order may make a motion to a Superior Court judge to set aside or vary the order within seven days after the order is made.
[10] Similarly, rr. 54.09(2) and (3) provide that a person who opposes confirmation of a report on a reference must file a motion with a Superior Court judge within 15 days of the filing of the report with the Superior Court.
[11] The appellant has not moved under either r. 54.05(3) or r. 54.09(3) and, instead, has appealed directly to this court. The respondent argues that no such appeal lies to this court until the appellant has exhausted the remedies provided under those subrules.
[12] We agree.
[13] As Pardu J.A. determined in Fernandez v. Unique Auto Collision Network Solutions Corp., 2014 ONCA 458, at paras. 14 and 16, there is no direct right of appeal to this court from an order resulting from a report from a reference conducted under r. 54. The proper procedure is to oppose confirmation of the report under r. 54.09, which results in a hearing in the nature of an appeal. Following the hearing contemplated by r. 54.09(3), there is a further right of appeal without leave to this court for a second review of the merits of the report, and any subsequent decision on the motion opposing confirmation. If the report has already been confirmed (as is the case here), then the dissatisfied party must seek special leave from the Superior Court to extend the time to file a motion in opposition.
[14] The same considerations apply in relation to motions to vary or set aside orders made on motions heard by a reference judge, brought pursuant to r. 54.05(3). If no motion to vary or set aside has been made within the time allotted, a motion to extend time must be made to the Superior Court, failing which no appeal lies directly to this court.
[15] The appellant argues that the Reference Order, unlike in references decided by associate judges, is by a judge of the Superior Court, and thus this court has jurisdiction pursuant to s. 6(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. We disagree. The process for opposing confirmation expressly applies to references before a judge as well as an associate judge: see rr. 54.05(1) and 54.09(2). Therefore, regardless of whether the reference is undertaken by a judge or associate judge, a dissatisfied party must first exhaust the remedies provided for under r. 54 before appealing to this court.
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