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Civil Litigation - Special Case [R22]. Aukema v. Peters
In Aukema v. Peters (Ont CA, 2026) the Ontario Court of Appeal dismissed a joint consent motion for the "determination of a question of law by way of a special case under r. 22 of the Rules of Civil Procedure".
Here the court considers the test for these rare R22 'special case' motions:B. THE TEST TO BE MET
[6] Rule 22.01(2) provides for a special case where it may dispose of all or part of the proceeding, substantially shorten the hearing, or result in substantial cost saving. Rule 22.03(1) allows a special case to be brought before the Court of Appeal (“this Court”) in the first instance with leave.
[7] To be considered by this Court, the special case must at minimum raise one of the issues set out in r. 22.03(1):(a) there are conflicting decisions of judges in Ontario and there is no decision of an appellate court in Ontario;
(b) there is a conflict between decisions of an appellate court in Ontario and an appellate court of another province, or between decisions of appellate courts of two or more other provinces; or
(c) one of the parties seeks to establish that a decision of an appellate court in Ontario should not be followed. [8] However, even where one or more of the prerequisites of r. 22.03(1) are satisfied, leave is not automatic. Removal of the matter to this Court is discretionary. In Taylor v. Canada (Attorney General), 2011 ONCA 181, 104 O.R. (3d) 481, at para. 34, one of the few reported motion decisions under r. 22.03, Armstrong J.A. identified several factors relevant to the exercise of the motion judge’s discretion. These include: (i) the importance of the question of law; (ii) the inevitability of an appeal; and (iii) whether a prior determination in the court below will sufficiently assist this court in its ultimate determination, justifying the additional cost and delay.
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D. Analysis
[16] The parties argue that the caselaw in Ontario is not clear about whether qualified or absolute privilege attaches to an initial police statement not made under oath. They also submit that r. 22.03(1)(c) is engaged because of the defendant’s contention that the existing appellate authorities, to the extent that they suggest qualified privilege over absolute privilege, should not be followed.
[17] I disagree. The defendants’ submission that this court should clarify the existing case law does not satisfy any of the prerequisite elements listed in r. 22.03. Moreover, this position is incompatible with r. 22.03(1)(c) which does not apply where the caselaw challenged by the parties does not “conclusively and indistinguishably” determine the legal issue: Seed v. Delhey (1989), 1989 CanLII 4102 (ON CA), 67 O.R. (2d) 317 (C.A.).
[18] The parties have not identified any conflict in the jurisprudence of the Superior Court or between appellate courts in Canada on this issue as required to satisfy r. 22.03(a) and (b).
[19] Accordingly, none of the three prerequisites in r. 22.03 for the Court of Appeal to hear a special case at first instance have been met.
[20] Moreover, even if the parties had met the prerequisites, I would decline to exercise my discretion to order a special case before this Court as, I am not satisfied that determination of this question will substantially shorten the hearing or result in a substantial cost saving.
[21] The parties argue that the circumstances favour granting leave as, (i) the special case raises an important question of law for which clear guidance from this Court is needed; (ii) an appeal on this legal issue is inevitable; (iii) there are no findings of fact or credibility that would assist this Court in determining the legal question, so there is no value in having this question first answered by the Superior Court; and (iv) if this Court finds that reports to the police alleging criminal activity are protected by absolute privilege, the action must be dismissed.
[22] Special cases before the Court of Appeal are rare. The most recent special case considered by the court was Taylor in 2012. The five-judge panel hearing the special case observed at para. 3, that resort to the special case was justified because of the “apparent inconsistency in this court's jurisprudence, the tortured and lengthy procedural history of this case, and the importance of the legal issue raised.”
[23] By the time the parties brought a motion for a special case at the Court of Appeal, the action had been ongoing for over 20 years. Further, the motion judge granting the special case noted that counsel advised there were “30 other cases ‘waiting in the wings’” for the proposed legal question to be resolved: Taylor v. Canada (Attorney General), 2011 ONCA 181, 104 O.R. (3d) 481, at para. 28.
[24] The parties in this case, on the other hand, have not demonstrated a similar “tortured and lengthy procedural history”. Moreover, while it is true that the action must be dismissed if reports to the police are protected by absolute privilege, the same is not true if these reports are protected by qualified privilege, as a trial must be held to determine if the report was in fact made with malice.
[25] In addition, without determining the merits of the special case, I am concerned that the parties may not have set out the necessary material facts to determine what privilege attaches to initial complaints to police.
[26] Rule 22.04(a) requires the parties to set out the agreed material facts necessary to enable the court to determine the question of law. Where parties do not set out the necessary material facts, the judge may refuse to answer the legal question: Bank of Montreal v. Bray, (1998) 1997 CanLII 545 (ON CA), 36 O.R. (3d) 99 (C.A.), at p. 112.
[27] The importance of sufficient material facts for this special case is apparent in the defendants’ submissions on this motion. As previously observed, they primarily argue that previous cases holding that initial complaints to police are protected by qualified privilege are “not controlling”, presumably because they are factually distinguishable. This necessarily requires sufficient material facts. Were a special case heard by this Court, and the Court determined it could not answer the special case due to insufficient facts; this would involve a significant unnecessary use of judicial resources.
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