Simon's Megalomaniacal Legal Resources

Appeals - Single Motion Judge Versus Panel

Both the Divisional Court [CJA 21(4)] and the Court of Appeal [CJA 7(4)] have authority for a single judge on motion to transfer it to a panel. These cases are about where and when that is required - which seems to be about the seriousness of the underlying issue, for example jurisdiction.

. AIG Insurance Company of Canada v. Riddell

In AIG Insurance Company of Canada v. Riddell (Div Court, 2024) the Divisional Court illustrates an appellate motion transfer to a panel of the Divisional Court [under CJA s.21(4)]:

[8] The result of this stay motion will very likely resolve the underlying judicial review application one way or the other. In all the circumstances, I am exercising my discretion to adjourn the motion to a panel of the Divisional Court: Courts of Justice Act, s. 21(4).

[9] The motion is adjourned to a panel of three judges of the Divisional Court on Thursday, November 7, 2024 at 10:00 am. The hearing is scheduled for two hours and will proceed by video.

. Rosen v. Reed

In Rosen v. Reed (Div Court, 2024) the Divisional Court dismissed a motion for a (non-automatic) stay, here in an RTA context where the appellant had lost the appeal (thus the auto-stay was lifted) but was seeking a time extension for a CJA s.21(5) panel review (set aside) of that order.

Here the court considers the test for a CJA s.21(5) panel set aside motion:

[6] On a review motion pursuant to s. 21(5) of the Courts of Justice Act, the panel will not intervene to vary or set aside the order of a single judge absent an error of law or a palpable and overriding error of fact (Marsden v. Ontario (Chief Coroner), 2012 ONSC 6118; Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2017 ONSC 518 (Div. Ct.), para. 7). Where the motion judge exercises discretion, a review panel will not interfere unless the moving party demonstrates that the decision is so clearly wrong that it amounts to an injustice or the motion judge gave no or insufficient weight to relevant considerations (Franchetti v. Huggins, 2022 ONCA 111, para. 5).

. Rathod v. Chijindu

In Rathod v. Chijindu (Ont CA, 2024) the Ontario Court of Appeal notes that a single judge on an motion does not have jurisdiction to dismiss the appeal:

[10] The moving parties now ask that a single judge of this court dismiss the appeal because Roberts J.A.’s costs orders remain outstanding.

[11] Even if I were inclined to do so, a single judge of this court has no jurisdiction to dismiss an appeal: see Serra v. Serra, 2007 ONCA 465, 225 O.A.C. 236, at para 2. Rule 61.16(2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that:

(2.2) A motion in the Court of Appeal for an order that finally determines an appeal, other than an order dismissing the appeal on consent, shall be heard and determined by a panel consisting of not fewer than three judges sitting together, and always of an uneven number of judges.

. Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure)

In Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure) (Div Court, 2024) a single judge of the Divisional Court considered a JR by a citizen's group of the province's "decision not to include the redevelopment of Ontario Place’s West Island in the Category C Public Work Class Environmental Assessment of the Ontario Place Redevelopment Project pursuant to the Environmental Assessment Act".

Here the judge transfers this JR case to a panel of the Divisional Court [CJA 21(4)]:

Jurisdiction of Single Judge of Divisional Court

[19] Section 21(3) of the Courts of Justice Act, R.S.O. 1990, c.C.3 provides that a motion in the Divisional Court shall be heard and determined by one judge. Pursuant to s. 21(4), a judge assigned to hear and determine a motion may adjourn it to a panel of the Divisional Court. Pursuant to s. 21(5), a panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.

....

[31] The purpose of the EAA is “the protection, conservation and wise management in Ontario of the environment”.[9] OP4A submits that the environmental process as set out in the EAA is a crucial commitment to protecting Ontario’s environment, and public consultation is an integral component of that process. It appears that Ontario’s view was that it did not need to comply with the EAA and that the project could be piecemealed contrary to its own process.

[32] The scope of the EAA’s application to a public redevelopment project is an important question of public interest, as it speaks to the scope of an environmental law which has the potential of encompassing broad environmental protection and directly affects the public’s interest in being appropriately consulted.

[33] Decisions on the merits, in Divisional Court, are to be made by a panel of three judges. Where a proceeding is vexatious or demonstrably without merit, a single judge may quash or dismiss it on motion-- a decision that is reviewable as of right before a panel. It may be that at the end of the day as argued by Ontario, the will of the legislature must prevail, even if expressed retroactively. However, it cannot be said that OP4A’s concerns about governance in defiance of environmental legislation are frivolous or unworthy of argument before a panel of the court, notwithstanding the passage of legislation which purports to retroactively sanitize the initial allegedly unlawful conduct. Where, as here, the questions are legal issues of first impression, in a context of significant public law interest and concern, the issue is more appropriately dealt with by a panel than by a single judge.

[34] Accordingly, I adjourn this matter to a full panel of the Divisional Court in accordance with s.21(4) of the Courts of Justice Act.

. Canada (Attorney General) v. Georgiou

In Canada (Attorney General) v. Georgiou (Ont CA, 2023) the Court of Appeal considered motions for both leave to appeal, and a direct appeal, under the Mutual Legal Assistance in Criminal Matters Act brought by a mother seeking assets forfeited by a US criminal court against the son. The underlying procedure was a relief from forfeiture against 'forfeiture of property' proceeding under CCC 462.42.

In this quote the court states the principle that quashing an appeal requires a full panel of the court:

[30]The question of whether an appeal is within the jurisdiction of the court is a question for a panel, not for a single judge on a motion for directions. Only a panel may quash an appeal over which the court has no jurisdiction: see e.g., Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986, at paras. 4-5, where the question was whether the appeal was properly brought in this court or could only be brought to the Supreme Court of Canada, and Dal Bianco v. Deem Management Services Limited, 2020 ONCA 488, at para. 4, where the question was whether the appeal route was to the Divisional Court or this court.

. Dal Bianco v. Deem Management Services Limited

In Dal Bianco v. Deem Management Services Limited (Ont CA, 2020) a single judge of the Court of Appeal held that only a three-judge panel could decide jurisdictional issues, in this case whether the Court of Appeal or the Divisional Court had jurisdiction to hear a specific appeal:

[4] A single judge of this court lacks jurisdiction to decide this jurisdictional issue. It is settled that “[q]uestions of whether an appeal lies within the jurisdiction of this court must be decided by a three-judge panel of this court” and thus “a single judge has no power to decide whether an appeal is within the jurisdiction of this court”: Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986, at para. 4; see also Shinder v. Shinder, 2017 ONCA 822, at para. 4. Although this motion is framed as a motion for directions, if I were to find that this court lacks jurisdiction I would in effect be quashing the appeal, which only a panel of this court has jurisdiction to order: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(3); RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906, at para. 6.

. Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction)

In Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction) (Ont CA, 2021) a single judge of the Court of Appeal considered a messy appeal situation which ultimately required a full panel to decide:

[1] I have two motions before me. One motion is brought by the Regional Municipality of Halton to strike out the motion for leave to appeal brought by the responding party, Lisa Snowball. The other motion is brought by Lisa Snowball for leave to file fresh evidence on the motion for leave to appeal. Ms. Snowball’s motion for leave to appeal seeks to appeal the denial of leave to appeal by the Divisional Court from an order of a Superior Court judge.

[2] Prior to hearing the merits of the motions, I raised with counsel whether a single judge of this court has jurisdiction to determine either of them. I have concluded that I do not.

[3] Only a panel can determine the issue of jurisdiction with respect to an appeal: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(3), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 61.16(2.2). Also, only a panel can determine a motion for leave to appeal: Courts of Justice Act, ss. 7(1), 7(3).

[4] In my view, it follows from these provisions that since a panel must determine the motion for leave to appeal, it is a panel that must determine any jurisdictional issue relating to the motion for leave since, if successful, it would finally determine whether there is an appeal or not. Therefore, it must be a panel of this court that hears and determines the Region’s motion to strike the motion for leave to appeal.

[5] I reach the same conclusion respecting Ms. Snowball’s motion to adduce fresh evidence. Rule 61.16(2) provides that a motion to receive fresh evidence must be made to the panel hearing the appeal. Following the same analysis above relating to the jurisdiction issue, it is my view that, if a panel hearing an appeal must determine the admissibility of fresh evidence on the appeal, a panel hearing a motion for leave to appeal must determine the admissibility of fresh evidence on that motion.

[6] As a result, I order that these two motions be transferred to be heard and determined by a panel of this court. If the panel determines the jurisdictional issue in favour of the Region, then the motion for fresh evidence becomes moot. If the jurisdictional issue is determined in favour of Ms. Snowball, then the panel can direct how the motion for fresh evidence ought to be dealt with.

. Savic v. College of Physicians and Surgeons of Ontario

In Savic v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court considered the motion jurisdiction of a single judge of the Divisional Court (here a motion to quash):

[24] A single judge of the Divisional Court has jurisdiction to dismiss an application for judicial review on the basis that there is an adequate alternative remedy and on the basis of undue delay: Aljawhiri v. Pharmacy Examining Board of Canada, 2019 ONCA 798, at para. 3; Unimac-United Management Corp. v Metrolinx, 2016 ONSC 2032 (Div. Ct.), at para. 7; and Vangjeli v. WJ Properties, 2019 ONSC 5631 (Div. Ct.).

[25] Nevertheless, as held in De Pelham v. Human Rights Tribunal of Ontario, 2011 ONSC 7006, at para.12; Rayonier A.M. Canada Enterprises Inc. v. Independent Electricity System Operator, 2020 ONSC 5460 (Div. Ct.), at para. 17; and Knot v. State Farm Automobile Insurance Company, 2020 ONSC 7672 (Div. Ct.) at para. 18, a single judge of the Divisional Court should not dismiss an application for judicial review except in clear cases.

[26] As addressed below, in my view, this is a clear case where the application for judicial review should be dismissed on a preliminary basis.