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Appeals - Remedies - Case Management. Buehlmann-Miyake v. Buhlmann
In Buehlmann-Miyake v. Buhlmann (Ont CA, 2025) the Ontario Court of Appeal considers the interesting issue of whether "appeal management directions or decisions of a judge" were subject to CJA s.7(5), which addresses panel set asides of motion decisions:[4] To begin with, it is not obvious that a panel even has jurisdiction to review appeal management directions or decisions of a judge of this court. While s. 7(5) of the Courts of Justice Act provides for panel reviews of single-judge motion decisions, there is no equivalent provision providing for panel reviews of appeal management directions or decisions. As well, it seems that panel reviews of appeal management directions or decisions could undermine the purpose of case management conferences “to ensure the efficient conduct of the appeal”: Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario (“Practice Direction”), s. 8.2.
[5] Moreover, the motion for panel review is premature. A further procedural avenue remains open to the moving party to seek relief from the transcript requirements in the Rules: he can bring a motion for directions to the appeal management judge seeking this relief.
[6] Rule 61.09(4) of the Rules of Civil Procedure states: “If it is necessary to do so in the interest of justice, a judge of the appellate court may give special directions and vary the rules governing ... the transcript of evidence”.
[7] Section 11.1(3) of the Practice Direction states:Rule 61.09(4) permits an appellant to bring a motion to a single judge of the Court of Appeal for directions to vary the rules governing the material that must be served and filed to perfect an appeal. The moving party must satisfy the judge that it is in the interest of justice to grant relief from compliance with any of the Rules. [8] Section 8.4 of the Practice Direction further provides that if a party to an appeal managed appeal seeks relief from compliance with any of the Rules or the court’s practice direction, “an order of the appeal management judge dispensing with such compliance is required”: Practice Direction, s. 8.4.
[9] If the moving party is unable to obtain the relief he seeks on consent, it remains open to him to bring a motion to the appeal management judge: see Practice Direction, ss. 8.4, 11.1(3).
[10] Leaving aside whether this court should even be permitting panel reviews of appeal management decisions, the appeal management decision in this case was entirely innocuous. The appeal management judge simply described the requirements of the rules and imposed a reasonable deadline for filing proof that transcripts have been ordered. The moving party’s request for relief from filing transcripts does not provide a basis for panel review given that the appeal management judge was not ruling on a request for relief from compliance. And the moving party has provided no basis for clarification relating to the regulations for translation. The motion for review is frivolous. It can serve no purpose because it cannot possibly succeed. . Appleyard v. Zealand
In Appleyard v. Zealand (Ont CA, 2022) the Court of Appeal considered the CJA 134(1) 'appeal powers' jurisdiction of the court to set a case management timetable for the management of an appeal:[52] Nor do I see any error in the motion judge’s exercise of his discretion in his case management of the proceedings to avoid the continuing abuse of the court’s processes due to Ms. Appleyard’s vexatious conduct. The excessive and unnecessary delay in these proceedings led to this court’s January 4, 2019 direction, under s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, that a timetable for the timely administration of this estate be established. The motion judge made his order in accordance with that direction.
[53] Setting a timetable is entirely within a case management judge’s discretion: Teitler v. Dale, 2021 ONCA 577, at para. 24. I see no error in the exercise of that discretion. His timetable achieved the court-ordered objective of bringing to an end the years of unnecessary and expensive litigation ongoing since Mr. Appleyard’s death in 2013. It equitably balanced the parties’ respective interests, including those of the beneficiaries whose inheritance has been eroded as a result of Ms. Appleyard’s vexatious conduct of these proceedings.
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