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Appeals - Taking Out of Orders Below

. Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd.

In Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd. (Ont CA, 2014) the Court of Appeal noted the requirement that an order appealed from must be formalized for purposes of the appeal, and the principle that an appeal is of the order or judgment below, not of the reasons for decision:
[5] When the motion was heard, there was no signed and entered order before the court. The appeal lies from the order, not from the reasons: see Re Bearcat Exploration Ltd., 2003 ABCA 365 (CanLII), 2003 ABCA 365, at para. 13. The formal order must be before an appellate court, because it is the correctness of the disposition, and not the reasons, which is in issue: see Re Smoke (1989), 77 C.B.R. (N.S.) 263 (Ont. C.A.).
. Candito v. Nmezi

In Candito v. Nmezi (Ont CA, 2015) the Court of Appeal considers the mischief that can be caused when one party to an order neglects or refuses to 'approve as to form and content' a draft order sent to them by another party, as is standard practice in the profession. To me the case highlights the irrationality of court rules requiring too-often uncivil parties to co-operate in essential aspects of court process. The problem arises in other contexts, for example the relatively new 'discovery plan' Rule 29.1, which requires similar co-operation. Such procedures are too-often abused in the course of litigation to cause additional delay and expense in what is already an overly expensive and slow regime.

In the case of formalizing court orders my practice has usually been to have draft orders prepared at the last attendence before the court, for approval by the other side and execution by the court on-the-spot. When dealing with unrepresented parties counsel typically additionally request that the judge order that 'approval as to form and content be dispensed with'. Ultimately though I remain puzzled as to why the burden to formalize orders and judgments is placed on the parties, as it does not seem a great burden on the court itself to issue them in the course of their normal duties. After all, it is ultimately the expression of the court's will that is being captured here, so who better (and more efficiently) to perform this function:
[1] Civil litigation in the public courts can only deliver timely and cost-effective justice if the parties perform certain basic procedural obligations. One such obligation requires a party to settle an order under appeal in a timely fashion so that an appellant can perfect its appeal within the timeframe stipulated by the Rules of Civil Procedure. This obligation has been recognized for some time. Almost fifteen years ago, The Advocates’ Society specifically addressed this obligation in its Principles of Civility for Advocates. Principle 16 provides, in part, that counsel “should promptly prepare and submit a proposed order to opposing counsel and attempt to reconcile any differences before the draft order is presented to the Court.”

[2] In the present case, the respondent, State Farm Mutual Automobile Insurance Company (“State Farm”), failed to perform that basic obligation in a misguided attempt to thwart the ability of the Economical Insurance Group (“Economical”) to exercise its right of appeal.

[3] State Farm’s litigation tactics compelled Economical to bring a motion to extend the time to perfect its appeal. Although the substantive relief sought by Economical ended up going on consent, for the reasons set out below I conclude that State Farm’s unreasonable litigation conduct justifies awarding Economical partial indemnity costs of $5,000.00.

.....

[21] The parties cannot agree on costs. Economical seeks its partial indemnity costs of the motion in the amount of $5,000.00, all in. State Farm submits that such a request is unreasonable and that each side should bear its own costs.

[22] I disagree with State Farm’s submission. Economical’s request for costs is most reasonable. The unreasonableness in the events which transpired consisted solely in State Farm’s failure to perform its obligation to settle an order subject to appeal in a timely fashion. For State Farm to take the position that it would not settle the order under appeal until Economical had argued its motion to extend the time to perfect amounted to unacceptable litigation gamesmanship. From the submissions it made at the hearing of the motion, it is apparent that State Farm delayed responding to Economical’s requests to settle the order so that it could manoeuver Economical into a position where it might be required to argue the merits of its appeal in order to secure an extension of time to perfect. That was the thrust of the submissions made by State Farm’s counsel based upon a book of authorities tendered at the hearing.

[23] In my view, such unreasonable litigation tactics by State Farm would have merited an award of full indemnity costs against it. However, Economical only requested partial indemnity costs, so I am limited by its request.
. Cheung v. Samra

In Cheung v. Samra (Ont CA, 2018) the court makes a point regarding the role of formal orders in appeals:
[11] Before concluding, we would add one further observation. The formal order in this case has not been taken out. The court raised this concern with counsel prior to the hearing. Counsel acknowledged their oversight in this regard but urged us to hear the motion in any event. We chose to do so in order to avoid the delay that would have been occasioned through an adjournment of this matter, especially if we concluded that the matter had to be transferred to the Divisional Court. However, we would reinforce that this is not the proper procedure to be followed in such matters. The formal order must be taken out since any appeal lies from the order, not from the reasons: Grand River Enterprises v. Burnham (2005), 2005 CanLII 6368 (ON CA), 197 O.A.C. 168 (C.A.) at para. 10. Further, in some instances, the precise wording of the order may have an impact on the proper analysis.
. Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd.

In Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd. (Ont CA, 2014) the Court of Appeal noted the requirement that an order appealed from must be formalized for purposes of the appeal, and the principle that an appeal is of the order or judgment below, not of the reasons for decision:
[5] When the motion was heard, there was no signed and entered order before the court. The appeal lies from the order, not from the reasons: see Re Bearcat Exploration Ltd., 2003 ABCA 365 (CanLII), 2003 ABCA 365, at para. 13. The formal order must be before an appellate court, because it is the correctness of the disposition, and not the reasons, which is in issue: see Re Smoke (1989), 77 C.B.R. (N.S.) 263 (Ont. C.A.).
. Gustafson v. Johnson

In Gustafson v. Johnson (Ont CA, 2016) the Court of Appeal explains why the taking out of a formal order (which is necessary to perfect an appeal) is useful, and sometimes necessary, for purposes adjudicating a motion to extend time to perfect an appeal. Presumably the same reasoning applies on a motion to extend time to commence an appeal.
[7] An appeal lies from an order or judgment and not from the reasons for decision. No judgment has been taken out in this proceeding. If it is necessary to understand the merits of the proposed appeal, then the court may require the parties to file the formal judgment before resolving a motion to extend time: Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500 (CanLII), 17 C.B.R. (6th) 91, at paras. 5-6. In the circumstances of this case, without the formal judgment it is not possible for the court to properly assess the merits of the putative appeal. Therefore, we would set aside the Order and order that a judgment be filed before a further motion to extend time is heard and decided.

[8] A single example will suffice to show why it is necessary to see the formal terms of the judgment before the court can fairly assess the putative ground of appeal relating to Ms. Johnson. The moving parties submit that the application judge erred by issuing a decision purporting to bind Ms. Johnson, a person who was not named as a party to the application. Without the formal judgment, the court is not in a position to assess the merits of this ground of appeal. Indeed, this ground of appeal gains strength from the respondents’ stated reason for not yet having taken out the judgment in this matter. The reason given is that so long as the formal judgment has not been taken out, the application judge remains seized of the matter and that, in turn, leaves open the possibility of rectifying any problems arising from the fact that Ms. Johnson was not named as a respondent to the application.


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