Simon's Megalomaniacal Legal Resources

Collateral Attack (2)

. Hardy v. Lee

In Hardy v. Lee (Div Court, 2024) the Divisional Court found an instance of 'collateral attack' on the basis of a case management judge's order that required that "no party may bring any further motions except with leave":

[2] In my view, for the reasons set out below, the applicant requires leave of a Superior Court judge before she is entitled to bring her proposed motion for leave to appeal. Accordingly, the motion is stayed pending the earlier of (a) the applicant obtaining leave to bring this motion; and (b) the resumption of the trial.

....

The Order Prohibiting Further Motions except with Leave

[9] In the trial scheduling order made by Jarvis J. on October 23, 2023, the case management judge ordered that no party may bring any further motions except with leave.

[10] No one appealed the order made by Jarvis J. It is not open to collateral attack now.

....

[15] The Court of Appeal for Ontario routinely requires parties who have been precluded from commencing proceedings without leave of the Superior Court to refrain from bringing appeals in the Court of Appeal without leave first being obtained. It is the parties who face the prohibition under the court’s order; not the appellate court.

[16] The one obvious exception is that (unless leave to appeal is otherwise required) a party does not need leave to appeal the actual order prohibiting them from bringing proceedings without leave. Leave may be required by the CJA. But the leave requirement of the impugned order will not preclude an appeal of that very order. This is apparent as well in the analogous provisions of s. 140 (2.3) of the CJA regarding vexatious litigant orders.

[17] As noted above, this is not a motion for leave to appeal from the order of Jarvis J. precluding motions without leave. That order remains operative and unchallenged.

....

[19] In my view, the applicant is not entitled to proceed with the motion for leave to appeal from the terms of the adjournment ordered by Kaufman J. on May 27, 2024 unless or until she obtains leave to do so as required by the order of Jarvis J. dated October 23, 2023.

[20] Rather than dismissing the motion for leave to appeal, it seems to me appropriate to stay it to give the applicant time to consider whether she wishes to move for leave to proceed in the Superior Court. Accordingly, the motion for leave to appeal is stayed pending the earlier of (a) the applicant obtaining leave to bring this motion; and (b) the resumption of the trial.

. Angel Capital Finance Inc. v. Jawaid [interlocutory order]

In Angel Capital Finance Inc. v. Jawaid (Ont CA, 2024) the Divisional Court held that an interlocutory procedural order could not ground a 'collateral attack', as it was not binding on the trial court:

[2] The appeal turns on the appellant’s argument that the judgment amounts to a collateral attack on an earlier decision of Fowler Byrne J. setting aside a default judgment and permitting the appellant to file a statement of defence. There is no merit to this assertion. Such an order is interlocutory because it does not determine the rights of the parties, but only the procedure by which those rights will be determined: Roblin v. Drake, 1938 CanLII 54 (ON CA), [1938] O.R. 711 (C.A.). The reasons of Fowler Byrne J. that explained why the default judgment was set aside were not binding on the trial judge: Simmonds v. Simmonds, 2013 ONCA 479, 117 O.R. (3d) 479.

. Sun v. Canada (Attorney General)

In Sun v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal made the point that after an interlocutory order is dismissed, the correct procedure is to seek to appeal that decision, not to repeat the request anew in the context of a separate appeal - which the court referred to as a 'collateral attack':

[7] The appellant submits that the Federal Court erred in refusing to admit certain additional evidence she offered that was not before the Agency when it made its decision. In submissions before us, the appellant referred to some new evidence. Among other things, the appellant pointed us to a revised income tax return that she filed after the Agency’s decision.

[8] We cannot consider this submission or the new evidence. This is because the Federal Court refused to admit the evidence by way of an interlocutory Order dated September 1, 2023. If dissatisfied with the Order, the appellant had to appeal it. She did not. As a result the Order is final and cannot be collaterally attacked in this separate appeal.

. 580 Christie Street v. Miha Halik

In 580 Christie Street v. Miha Halik (Div Court, 2024) the Divisional Court cited the SCC regarding 'collateral attack':

[15] In Wilson v. The Queen, 1983 CanLII 35 (SCC), 2 S.C.R. 594 at par. 599, the Supreme Court of Canada stated that:

It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stand and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally – and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation or nullification of the order or judgement ...

. Toronto (City) v. C.U.P.E., Local 79

In Toronto (City) v. C.U.P.E., Local 79 (SCC, 2003) the Supreme Court of Canada discusses collateral attack:

(2) Collateral Attack

33 The rule against collateral attack bars actions to overturn convictions when those actions take place in the wrong forum. As stated in Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, at p. 599, the rule against collateral attack

has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally — and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.

Thus, in Wilson, supra, the Court held that an inferior court judge was without jurisdiction to pass on the validity of a wiretap authorized by a superior court. Other cases that form the basis for this rule similarly involve attempts to overturn decisions in other fora, and not simply to relitigate their facts. In R. v. Sarson, 1996 CanLII 200 (SCC), [1996] 2 S.C.R. 223, at para. 35, this Court held that a prisoner’s habeas corpus attack on a conviction under a law later declared unconstitutional must fail under the rule against collateral attack because the prisoner was no longer “in the system” and because he was “in custody pursuant to the judgment of a court of competent jurisdiction”. Similarly, in R. v. Consolidated Maybrun Mines Ltd., 1998 CanLII 820 (SCC), [1998] 1 S.C.R. 706, this Court held that a mine owner who had chosen to ignore an administrative appeals process for a pollution fine was barred from contesting the validity of that fine in court because the legislation directed appeals to an appellate administrative body, not to the courts. Binnie J. described the rule against collateral attack in Danyluk, supra, at para. 20, as follows: “that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it” (emphasis added).

34 Each of these cases concerns the appropriate forum for collateral attacks upon the judgment itself. However, in the case at bar, the union does not seek to overturn the sexual abuse conviction itself, but simply contest, for the purposes of a different claim with different legal consequences, whether the conviction was correct. It is an implicit attack on the correctness of the factual basis of the decision, not a contest about whether that decision has legal force, as clearly it does. Prohibited “collateral attacks” are abuses of the court’s process. However, in light of the focus of the collateral attack rule on attacking the order itself and its legal effect, I believe that the better approach here is to go directly to the doctrine of abuse of process.

. Jones v. Quinn

In Jones v. Quinn (Ont CA, 2024) the Ontario Court of Appeal considered the law of 'collateral attacks':

[96] The rule against collateral attacks applies to insulate court orders that dispose of a request for relief on a substantive basis. The rule is generally invoked when a party attempts to circumvent the effect of an order rendered against it by challenging its validity in the wrong forum: see generally Yan v. Hutchison, 2023 ONCA 97, at para. 16, leave to appeal refused, [2023] S.C.C.A. No. 203; Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at paras. 71-72; R. v. Sarson, 1996 CanLII 200 (SCC), [1996] 2 S.C.R. 223, at para. 23. The discretionary rule is intended to promote the orderly administration of justice and is a particular application of the broader abuse of process doctrine: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 22; Amtim Capital Inc. v. Appliance Recycling Centers of America, 2014 ONCA 62, 118 O.R. (3d) 617, at paras. 15-16; and R. v. Irwin, 2020 ONCA 776, 398 C.C.C. (3d) 304, at paras. 28-29.

[97] In some circumstances, it might constitute an abuse of process for a party to obtain relief that they had requested and then abandoned at an earlier stage of the proceeding. For example, it would be an abuse of process for a party, inferring from a judge’s comments that their motion will fail, to abandon the motion, and then try to seek the same relief before a new judge. However, that is clearly not what happened in this case, and the appellant fairly makes no claim of an abuse of process.

. Regan v. Esterbauer

In Regan v. Esterbauer (Ont CA, 2024) the Court of Appeal held (interestingly) that where a solicitor's negligence claim, that alleged that a court finding was made 'negligently' by impugned representing counsel, amounts to a collateral attack on the finding (presumably as the only route to challenge it was an appeal against the related order):

[10] In order to succeed in his claim against the respondents, Mr. Regan must establish that, but for the respondents’ alleged negligence or breach of contract, the contempt finding by Gray J. and the decision of this court on appeal would have been different. We reject each of the grounds Mr. Regan raises.

[11] First, as the motion judge correctly found, this challenge amounts to an impermissible collateral attack on the decisions of Gray J. and this court on appeal: Lang Michener LLP v. King, 2017 ONSC 1917, at paras. 26-32, rev’d on other grounds, 2018 ONCA 471. On that basis, the motion judge correctly allowed the motion to dismiss Mr. Regan’s action as an abuse of process.