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. 9383859 Canada Ltd. v. The Court of Appeal for Ontario

In 9383859 Canada Ltd. v. The Court of Appeal for Ontario (Div Court, 2023) the Divisional Court considered a R2.1 frivolous and vexatious issue, here where the applicant sought to JR "a decision by the Executive Legal Officer (“ELO”) of the Court of Appeal delisting the applicant’s appeal". In these quotes the Divisional Court sets out what is essentially the Court of Appeal's defence to it's administrative action of de-listing the appeal (which was grounded in non-compliance with a security for costs order under R56.05), particularly in para 13:
[1] On August 25, 2023, Sandeep Singh, on behalf of the applicant, filed an application for judicial review in this Court. In his email accompanying the notice, Mr. Singh accurately advised the Court that the applicant sought to review a decision by the Executive Legal Officer (“ELO”) of the Court of Appeal delisting the applicant’s appeal in 9383859 Canada Ltd. v. Navartnam, Kubeskaram et al., COA-22-CV-0453.


[8] In the notice of application for judicial review and the applicant’s factum, the primary complaint of the applicant is that the ELO delisted the appeal in the absence of a judge’s order. As the factum states, the ELO “violated the Rules of Civil Procedure and deny [sic] the constitutional rights of the Applicant, by de-listing the Appeal of the Applicant, without an Order from a Honourable Judge.”


[10] First, decisions of the Court of Appeal are not subject to judicial review by the Divisional Court. The Court of Appeal is a “superior court of record”: Courts of Justice Act, RSO 1990, c. C.43, ss. 2(1). Any review of its conduct must be by way of appeal or a motion to reconsider, if available. The Divisional Court, over which the Court of Appeal exercises appellate jurisdiction, has no jurisdiction to judicially review decisions of a “superior court of record”, but only those of an “inferior court”: Judicial Review Procedure Act, RSO 1990, c. J.1, s. 1.

[11] Second, the applicant provides no authority in support of the proposition that the ELO does not have the power to “delist” and that only a judge can do so. This is not surprising as the law goes the other way. As was observed in Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 SCR 673, at paras. 47-49, the “assignment of judges, sittings of the court, and court lists” is part of the administration of the court controlled by judges, not the executive branch of government. Indeed, control over lists is seen as a basic or “minimum requirement” of the institutional aspect of judicial independence.

[12] This control over lists by the judiciary is also found in s. 75(1) of the Courts of Justice Act. Section s. 76 of the Courts of Justice Act then provides that court staff “shall act at the direction of the chief justice of the court.” There is no rule of court requiring a judge’s order to list or delist an appeal for hearing. Scheduling of matters is usually delegated to administrative staff who may list and delist cases. If a litigant takes issue with the listing or delisting of their case by an administrator, their remedy is to seek direction from a judge of the court in which the proceeding is taking place. The applicant has not done so. The application to this court, therefore, is an inappropriate and collateral attack on proceedings that are ongoing in the Court of Appeal.

[13] Third, the decision to delist in this case follows directly from an order of the Court of Appeal, as the applicant was ordered to post security for costs by March 8, 2023. Rule 56.05 of the Rules of Civil Procedure provides that, until security for costs is posted, the party required to post those costs is not entitled to take any further step in the proceeding other than to appeal the order. The applicant appealed the order unsuccessfully to a panel and has now sought leave to appeal to the Supreme Court of Canada. However, his application for leave does not stay Miller J.A.’s order. Accordingly, as the applicant cannot proceed with the appeal because it has failed to comply with a court order, the matter was delisted. Viewed this way, the ELO’s action delisting the appeal was required in order to comply with Justice Miller’s order.


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