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Civil Litigation - 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. . Reference re iGaming Ontario
In Reference re iGaming Ontario (Ont CA, 2024) the Ontario Court of Appeal considered an unusual 'reference' [CJA s.8] case, here where the Ontario Crown wished legal issues resolved regarding Criminal Code-authorized gaming.
Here the court considered 'proposed evidence' of authorized reference intervenors:[1] By Order in Council 210/2024, the Lieutenant Governor in Council referred the following question to this court, pursuant to s. 8 of the Courts of Justice Act, R.S.O. 1990, c. C.43:Would legal online gaming and sports betting remain lawful under the Criminal Code if its users were permitted to participate in games and betting involving individuals outside of Canada as described in the attached Schedule? If not, to what extent? ....
[7] The proposed evidence consists of five affidavits: three from the Canadian Lottery Coalition Members, and two from British Columbia (one of which appends an expert report). British Columbia and the Canadian Lottery Coalition Members argue that their proposed evidence is relevant to correct factual misimpressions left by Ontario’s evidence. These misimpressions include that the proposed scheme would in fact bar players located outside of Ontario but within Canada from betting against players located in Ontario, and that the proposed scheme is analogous to or permissible under the regulatory schemes in various other jurisdictions.
[8] Ontario, Flutter, the CGA and NSUS oppose the admission of this evidence. There were two thrusts to the opposition. First, that the proposed evidence is irrelevant to the reference question. Second, that its admission at this stage may lead to delay and complexity in the reference proceeding. NSUS also argues that British Columbia’s expert report has not been properly tendered as expert evidence and that the author is not qualified to provide the opinions offered in his report. In the alternative, Flutter, NSUS and the CGA seek the right to cross-examine the affiants of the interveners seeking to adduce evidence, and leave to adduce responding affidavits.
[9] It is not my role as a single judge case managing the reference to determine questions of admissibility and relevance. This is for the panel to decide. The issue at this stage is whether the proposed evidence “may assist the court in determining” the reference question: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at paras. 17-18; see also Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 349, at para. 21.
[10] There are a number of relevant considerations.
[11] First, the “general rule” that interveners are typically not permitted to supplement the record does not apply in this case, where the parties seeking to file evidence are the effective opposition to Ontario and where there is no pre-existing record from a court below. It is appropriate for the moving parties to participate in the creation of the record in which the reference question will be determined: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 361, at para. 9. The reference question is framed by the Lieutenant Governor in Council, but s. 8(6) of the Courts of Justice Act (which provides for the court’s appointment of counsel if an affected interest is not represented) recognizes that Ontario is not entitled to proceed unchallenged. In a case where Ontario has filed an extensive record, meaningful opposition must include an opportunity to challenge the factual assertions in that record.
[12] Second, it is important that the court have an adequate factual context for the determination of the reference. It is well-established that in a constitutional reference, an intervener may be permitted to file material (subject to the court’s determination as to its relevance and weight), because constitutional challenges should not be determined in a factual vacuum: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 17. However, the parties disagree about whether this is a “constitutional reference”. Ontario says it is not and that the reference question is purely one of statutory interpretation. British Columbia and the Canadian Lottery Coalition Members say that this is a constitutional reference because the court is asked to assess whether a provincial scheme would comport with federal legislation, and because some of the interveners have raised constitutional issues. I also note that Ontario’s own Statement of Particulars makes an argument based on language in the Constitution Act, 1867. Regardless of whether this is a “constitutional reference”, it is clear to me that the factual context may assist the court in answering the reference question. The reference question and incorporated Schedule explain Ontario’s proposed changes to the iGaming scheme in part by reference to the current scheme. The reference question asks whether the current scheme would “remain lawful” under the Criminal Code if it were changed in specific ways, and if not, “to what extent?”. Answering the reference question presupposes an understanding of how the current scheme operates.
[13] Third, I do not accept Ontario’s argument that the record must be limited to what it has put before the court on the reference. There are no stipulated agreed or assumed facts. Nor is there draft legislation. Rather, Ontario has filed affidavit evidence speaking to the operation of the current iGaming scheme and to the operation of the proposed scheme. Any party is free to argue at the hearing of the reference that the court’s determination of the reference must be based on facts put forward by Ontario only, or, as Ontario has argued here, that the reference involves a narrow question of statutory interpretation with a limited role for evidence. At this stage, however, it would be inappropriate to “limit the scope of the legal arguments by artificially curtailing the factual record”: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 361, at para. 8.
[14] Fourth, I accept that it would not be appropriate for evidence to be put forward for the purpose of raising new and unrelated issues that have the effect of broadening the scope of the reference. Here, I am satisfied that the purpose of putting forward the proposed evidence is not to raise new issues, but to respond directly to Ontario’s own evidence about the operation of the scheme and the future operation of the proposed scheme, and to support British Columbia and the Canadian Lottery Coalition Members in their opposition to Ontario in the reference. This evidence may be of assistance to the court in determining the reference question. Again, this does not preclude any party from making arguments about the admissibility and relevance of the evidence or any part of the evidence at the hearing of the reference.
[15] Fifth, it is premature at this stage to make any determination about the admissibility and appropriate scope of expert evidence. As with all of the other proposed evidence, the admissibility of all or any part of the expert report submitted by British Columbia and the permitted scope of the author’s expertise, if any, is for the panel to determine.
[16] Sixth, the fact that some of the proposed evidence refers to alleged illegal or unregulated activities is not a reason to exclude it from the record. Arguably Ontario itself has opened the door to such evidence by adducing evidence about the existence of unlawful online gaming sites as part of the context in which the current scheme operates, and the avoidance of harms of unlawful or unregulated online gaming as a rationale for the proposed scheme. As for the portions of the proposed evidence that identify specific operators by name, this reference is not about, and cannot result in, a determination of liability against any specific operator. This reference is about the legality of a hypothetical new scheme which does not currently exist. The reference question and incorporated Schedule explain that new scheme in part by reference to the existing scheme. Understanding the operation of the current scheme – including how it in fact affects persons in provinces outside of Ontario – will assist the panel in understanding the proposed scheme and advising whether it will “remain lawful under the Criminal Code”, and if not, “to what extent”.
[17] I turn to the assertion that the inclusion of the proposed evidence in the record will lead to delay and complexity, as the opposing parties may want to file responding evidence, and to cross-examine to refute assertions in the proposed evidence, and that persons whose interests are not already represented may seek to participate in the reference to protect their reputations and business interests. I am confident that these and any other procedural concerns that arise from the inclusion of the proposed evidence in the record can be addressed in the reference process that I am case managing. A date has been fixed for another attendance before me (July 29, 2024). Other attendances can be arranged, if and when required.
[18] For these reasons leave is granted to British Columbia and the Canadian Lottery Coalition Members to file on the reference the proposed evidence put forward in their motions. . Sierra Club Canada Foundation v. Canada (Environment and Climate Change)
In Sierra Club Canada Foundation v. Canada (Environment and Climate Change) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of two JRs, one which "challenged the validity of a report resulting from a regional assessment of offshore oil and gas exploratory drilling, conducted under the Impact Assessment Act" and the other to "quash a regulation made under the Act that exempts certain exploratory drilling activities from a number of impact assessment requirements".
Here the court considers the role and status of Supreme Court of Canada references:[2] After our Court heard this appeal, the Supreme Court of Canada released its decision on the constitutionality of the Act: Reference re Impact Assessment Act, 2023 SCC 23 [IAA Reference]. The Supreme Court opined that the federal impact assessment scheme, consisting of the Act and its accompanying Physical Activities Regulations, S.O.R./2019-285 (Activities Regs), is unconstitutional in part.
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[67] In principle, the Supreme Court’s answer to a reference is advisory and non-binding; in practice, courts follow these rulings and treat them as judicial decisions: Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27 at paras. 151–152; Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 40; Reference Re Certification in the Manitoba Health Sector, 2019 MBCA 18. These authorities suggest that I must follow the Supreme Court’s opinion that the entire Act is unconstitutional except sections 81–91. Although the IAA Reference did not specifically address the Act’s regional assessment regime, this regime remains invalid because one cannot sever it from the designated projects scheme: IAA Reference at para. 210.
[68] Moreover, the Supreme Court has stated that a tribunal must refuse to give effect to unconstitutional legislation: Ontario (Attorney General) v. G, 2020 SCC 38 at para. 88. . Reference re Code of Civil Procedure (Que.), art. 35
In Reference re Code of Civil Procedure (Que.), art. 35 (SCC, 2021) the Supreme Court of Canada (in a Quebec appeal) recognizes the persuasive impact of 'references' [Ontario's version is under CJA 8], and allows itself to suspend the effect of it's ruling on a reference, similar to Charter orders:[151] In principle, a reference is merely an advisory procedure. The answer to a reference question may be viewed as a legal opinion for the executive that is analogous to an opinion provided by law officers of the Crown (Reference re Secession of Quebec, at para. 15). In a reference, the Court therefore does not have the power to formally declare a law to be unconstitutional. The only power it has is to answer the question before it (Attorney‑General for Ontario v. Attorney‑General for Canada, 1912 CanLII 407 (UK JCPC), [1912] A.C. 571 (P.C.), at pp. 588‑89; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), 1993 CanLII 119 (SCC), [1993] 1 S.C.R. 839, at p. 863; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1998 CanLII 833 (SCC), [1998] 1 S.C.R. 3 (“Reference re Remuneration of Judges (1998)”), at para. 9).
[152] Notwithstanding their advisory — and therefore, in principle, non‑binding — nature, opinions given in references are in practice treated as judicial decisions and are followed by other courts (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 40; see also Reference Re Certification in the Manitoba Health Sector, 2019 MBCA 18, [2019] 5 W.W.R. 614, at para. 23; G. Rubin, “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law” (1960), 6 McGill L.J. 168, at pp. 175‑80). The day after this Court gives an opinion, any trial court considering the same question would in all likelihood apply that opinion because of its persuasive weight (Reference re Remuneration of Judges (1998), at para. 10). It may therefore be appropriate, where the circumstances so require, for this Court to exercise its remedial discretion to suspend the effects of its decision in the context of a reference, as it may do on an appeal.
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