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. Wright v. Strauss

In Wright v. Strauss (Ont CA, 2019) the Court of Appeal dealt with a knotty appeal route jurisdictional issue. Following the reasoning along is good exercise!:
[1] The appellant appeals from the order (“Order”) of the motion judge, dismissing the application he commenced in 2016 against his daughters, on their own behalf and as trustees of the Wright Family Trust (“Trust”). For the reasons that follow, we conclude that this court does not have jurisdiction to hear this appeal, and we order that this appeal be transferred to the Divisional Court.

[2] The appellant also appealed from a second order (“Second Order”) of the motion judge, made at the same time, involving the same parties, and addressed in the same set of reasons as the Order. The appeal of the Second Order was properly made to this court and we dismissed that appeal: Wright v. Urbanek, 2019 ONCA 823.

[3] Pursuant to s. 255 of Ontario’s Business Corporations Act, R.S.O. 1990, c. B.16, as amended, (“OBCA”), an appeal lies to the Divisional Court from an order made under the OBCA. The Order finally resolved issues in an oppression application brought under the OBCA and the proper route of appeal is to the Divisional Court: Ontario Securities Commission v. McLaughlin, 2009 ONCA 280, 248 O.A.C. 54, at para. 16.

[4] While the appellant concedes that an appeal from the Order would normally be to the Divisional Court, he asserts that s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, and r. 6.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, permit this court to hear his appeal of the Order. Alternatively, he argues that this is one of those exceptional cases where it would be appropriate for Chief Justice of the Superior Court of Justice to designate this court as a panel of the Divisional Court for the purpose of hearing and determining the appeal.

[5] We reject these arguments.

[6] First, s. 6(2) of the Courts of Justice Act permits this court to hear and determine an appeal that lies to the Divisional Court if an appeal in the same proceeding lies to and is taken to this court. But the two appeals are not in the same proceeding. Although the motion judge released only one set of reasons, he issued two orders for two factually related but legally distinct proceedings, each with its own originating process: the Order, striking a notice of application regarding the transfer of a mortgage from a family company to the Trust; and the Second Order, striking a statement of claim challenging the validity of the Trust.

[7] Second, r. 6.01(1) provides that “[w]here two or more proceedings are pending in the court” the court may, in the circumstances set out in that rule, order that the proceedings be heard together. However, this rule applies to proceedings in the same court, not proceedings in different courts: Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839, at para. 11.

[8] Finally, while the combined effect of ss. 13 and 18 of the Courts of Justice Act enables three judges of the Court of Appeal to sit as a panel of the Divisional Court with the consent of the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario, as Trotter J.A. notes in Tomec, at para. 14, this court rarely reconstitutes itself as the Divisional Court. Doing so involves bypassing the Divisional Court. We are not persuaded that this is one of those rare instances where this court should reconstitute itself as the Divisional Court.

[9] This is not a case where the jurisdictional issue was noticed only after the appeal had been argued: see Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 2001 CanLII 7060 (ON CA), 54 O.R. (3d) 76 (C.A.), at para. 12. Here, the court notified the parties of the potential jurisdictional problem nearly four months before the scheduled hearing date and advised them that it is not this court’s practice to take jurisdiction to hear an appeal if it concludes that the appeal was brought in the wrong court. The parties made no submissions to the court in response to the court’s letter notifying the parties of the potential jurisdiction problem.

[10] Moreover, it is not clear that the delay resulting from a transfer of the appeal of the Order to the Divisional Court will result in any “real” delay. In oral submissions, counsel for both parties agreed that if the appellant prevailed on his appeal from the Order, his application should be stayed pending completion of the steps remaining to be taken pursuant to the order of Conway J., dated October 7, 2016, made in the oppression application brought against the appellant by his daughters.
. Tomec v. Economical Mutual Insurance Company

In Tomec v. Economical Mutual Insurance Company (Ont CA, 2019) the Court of Appeal considered an issue of court consolidation:
Reconstituting as the Divisional Court

[10] The first part of the claim for relief is that the appeals be heard at the same time, or one immediately after the other. This type of consolidation may be ordered under r. 6.01 of the Rules of Civil Procedure, which provides:
6.01(1) Where two or more proceedings are pending in the court and it appears to the court that,
(a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

(c) for any other reason an order ought to be made under this rule,
the court may order that,
(d) the proceedings be consolidated, or heard at the same time or one immediately after the other. [Emphasis added.]
Mr. Soares also relies on s. 138 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (“CJA”), which states: “As far as possible, multiplicity of legal proceedings shall be avoided.”

[11] The underscored words in r. 6.01, above, highlight the problem with this motion. The rule applies to proceedings that are in the same court, not in different courts.

[12] Mr. Soares’s proposed solution is to have this court reconstitute itself as a panel of the Divisional Court. This may be achieved through the combined operation of ss. 13 and 18 of the CJA. Section 18(2) provides that the “Divisional Court consists of the Chief Justice of the Superior Court of Justice, who is president of the Divisional Court, the associate chief justice and such other judges as the Chief Justice designates from time to time.” Every judge of the Superior Court is also a judge of the Divisional Court: s. 18(3).

[13] Section 13(1) of the CJA permits the Chief Justice of Ontario, with the concurrence of the Chief Justice of the Superior Court, to perform the work of a Superior Court judge. By virtue of his or her office, a judge of the Court of Appeal has “all the jurisdiction, power and authority” of a Superior Court judge: s. 13(2). Indeed, when appointed, judges of the Court of Appeal are also appointed judges, ex officio, of the Superior Court, and vice versa.

[14] The combined effect of these provisions enables three judges of the Court of Appeal to sit as a panel of the Divisional Court with the consent of the Chief Justice of the Superior Court of Justice. However, this court rarely reconstitutes itself as the Divisional Court. It typically occurs with the consent of all parties: see e.g., Wall v. Shaw, 2018 ONCA 929, 28 C.P.C. (8th) 351, at para. 3. There must also be compelling reasons to do so. In Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 2001 CanLII 7060 (ON CA), 54 O.R. (3d) 76 (C.A.), at para. 12, Rosenberg J.A. explained the circumstances in which this might be done: “It is an option that is generally only resorted to where the jurisdictional issue is noticed after the appeal has been argued and is done to save the parties the expense and inconvenience of having to reargue the appeal.”

[15] The application brought on behalf of Mr. Soares is not a reaction to a newly discovered jurisdictional defect. This is not a situation in which an appeal was erroneously brought in this court when it should have launched in the Divisional Court. Here, there has been no mistake; instead, Mr. Soares wishes to bypass a level of court in order to consolidate his appeal with Ms. Tomec’s appeal. He argues that this process of reconstitution and consolidation will be more efficient and avoid inconsistent outcomes.

[16] While it may be more efficient to have the appeals heard together, this alone is not a sufficient reason to grant the relief requested. If this court were to reconstitute as the Divisional Court, for all intents and purposes, it would involve bypassing the Divisional Court. The Divisional Court is an important pillar of Ontario’s court structure, with a rich jurisprudence in administrative law. Allowing Mr. Soares to bypass the Divisional Court would deprive the Court of Appeal of the benefit of a considered judgment from that court. For these reasons, it is undesirable to bypass the Divisional Court absent compelling reasons for doing so. Here, there are none.

[17] Moreover, there is nothing unique about multiple cases with the same or similar issues traveling through the system at the same time, but at different levels of court. This, in itself, does not beget inconsistent judgments. To the extent that the issues in the Tomec and Soares cases are the same, the Divisional Court would be bound by the legal determinations made by this court, thereby avoiding inconsistent findings. Moreover, as counsel for Economical submits, there are many, many cases “in the system” that involve the same or similar issues as the one raised in Ms. Tomec’s appeal. Each will have to move through the established appeal/judicial review process in due course.

[18] Consequently, there is no basis to have this court reconstitute itself as the Divisional Court in these circumstances. Even if it could be done, consolidating the proceedings would result in Ms. Tomec’s appeal being adjourned due to the lack of additional court time available on October 16, 2019. Although Ms. Tomec does not oppose an adjournment, Economical does. An adjournment would be unwarranted in the circumstances.



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