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Appeals - Appeal Court Has Remedies Below [CJA 134(1)(a)]. T.O. Estate v. D.O.
In T.O. Estate v. D.O. (Ont CA, 2024) the Ontario Court of Appeal comments on the basis of the CJA 134(1) appeal remedy provision:[36] This is an appropriate case to exercise the appellate power to make the decision about terms of repayment that the trial judge ought to have made: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1). The “guiding force” for the exercise of that power is the interests of justice: Dasham Carriers Inc. v. Gerlach, 2013 ONCA 707, 313 O.A.C. 95, at para. 36. The record is sufficient to determine that the 2013 advances were demand loans, and nothing would be served by sending the matter back for a further hearing on this issue. . 778938 Ontario Limited v. EllisDon Corporation
In 778938 Ontario Limited v. EllisDon Corporation (Ont CA, 2023) the Court of Appeal allowed a venue appeal, here between Ontario and Nova Scotia, even though the Ontario court had 'jurisdiction simpliciter'. The case is notable for considering venue, jurisdiction simplicter and forum non conveniens in an inter-provincial context, not the usual international one - and for applying forum non conveniens even where Ontario has jurisdiction simpliciter.
In this quote the court applies it's CJA 134(1)(a) appeal remedy:[10] As we earlier indicated, the partial transcription does not contain a sufficient portion of the motion judge’s reasons to permit meaningful appellate review. Essentially, we are left only with the motion judge’s conclusions on the two issues of jurisdiction simpliciter and forum non conveniens. It is not fair to the parties nor to the motion judge to review his conclusions without his full reasons.
[11] If we reached the conclusion that the recording error foreclosed meaningful appellate review, the parties asked this court to determine the issues. We are in a position to do so under s. 134(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, because of the nature of the issues and the record: Earl v. McAllister, 2021 ONSC 4050 (Div.Ct.), at para. 52.
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