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Appeal Court Dicta

Federal Court - Appeals

. Devine v. Canada

In Devine v. Canada (Fed CA, 2023) the Federal Court of Appeal set out doctrine on striking a notice of appeal:
[5] In Zhou v. Canada (Citizenship and Immigration), 2013 FCA 194 this Court confirmed, in paragraph 2, that a Notice of Appeal can be struck where this Court:
... has no jurisdiction over the appeal, where the appeal manifestly lacks substance as to bring it within the character of a vexatious proceeding, where the appeal serves no practical purpose, or where it is “plain and obvious” that the appeal has no chance of success: Sellathurai v. Canada (Minister of Public Security), at paras. 7-8; Arif v. Canada (Citizenship and Immigration), 2010 FCA 157, 321 D.L.R. (4th) 760 at para. 9.
. Oleynik v. Canada (Attorney General)

In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal contrasts the role of a reconsideration [under R397] and an appeal:
[29] I agree with the Federal Court that “Rule 397 is not meant to be an appeal in disguise, allowing [Dr. Oleynik] to re-argue an issue a second time in the hope that the Court will change its mind” (Second Decision at para. 5). A claim that the Federal Court applied the wrong legal test in the First Decision is a subject matter for appeal, not a reconsideration motion. ...
. Oleynik v. Canada (Attorney General)

In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and granted) a motion to quash an appeal:
[2] The Attorney General of Canada has brought a motion in writing for an order quashing the proceedings pursuant to section 52(a) of the Federal Courts Act ['Powers of Federal Court of Appeal, Quashing'], R.S.C. 1985, c. F-7, and the Court’s plenary powers, or for an order removing the notice of appeal from the Court file pursuant to Rule 74(1) of the Federal Courts Rules ['Removal of documents' from court file], S.O.R./98-106 (Rules).

[3] The Attorney General submits that Dr. Oleynik’s notice of appeal is irregular and should not have been accepted by the Court for filing because it was filed too late to appeal the First Decision. The Attorney General says the reconsideration motion did not relieve Dr. Oleynik from timely filing a notice of appeal for the First Decision.

[4] As to the Second Decision, the Attorney General submits it is bereft of any chance of success and amounts to a collateral attack on the First Decision. Thus, says the Attorney General it should be quashed.

[5] Dr. Oleynik denies the notice of appeal is irregular and in any event points to Rule 56: “Non-compliance with any of these Rules does not render a proceeding…void, but instead constitutes an irregularity, which may be addressed under rules 58 to 60”. Dr. Oleynik further submits his appeal of the First Decision is not late because it could not be appealed until the Second Decision was rendered. In the alternative, he seeks an extension of time to May 19, 2023, the date he filed the notice of appeal.


[19] This Court has the power to quash an appeal that has no reasonable prospect of success and is manifestly doomed to fail: Tétreault c. Boisbriand (Ville), 2023 CAF 159 at para. 8; Martinez v. Canada, 2019 FCA 282 at para. 9; Lessard-Gauvin c. Canada (Procureur général), 2013 CAF 147; Yukon Conservation Society v. National Energy Board (1978), 1978 CanLII 3638 (FCA), [1979] 2 F.C. 14, 95 D.L.R. (3d) 655, at 18 (FCA), citing among others National Life Assur. Co. Of Canada v. McCoubrey, 1926 CanLII 73 (SCC), [1926] S.C.R. 277, [1926] 2 D.L.R. 550.
. Shull v. Canada

In Shull v. Canada (Fed CA, 2023) the Federal Court of Appeal dismissed an appeal of an interlocutory order, as the Federal Court Act [s.27(1.2)] provided that no such (informal and from the Tax Court) final orders were appealable to it:
[2] Subsection 27(1.2) of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act) is clear: only a final judgment of the Tax Court in informal proceedings may be appealed to this Court. Subsection 2(1) of the Act defines a "“final judgment”" as "“any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding.”" The word "“proceeding”" in this definition refers to the very matter that is before the court, rather than a component of the matter, such as a motion (Ontario Federation of Anglers and Hunters v. Alderville Indian Band, 2014 FCA 145, 461 N.R. 327 at para. 21, leave to appeal to SCC refused, 36035 (12 March 2015) [Alderville]).

[3] The order appealed from is not a final judgment. It does not determine any substantive right of either party, nor does it dispose of a "“proceeding”" as defined by this Court; for these reasons, the order falls outside the scope of subsection 27(1.2) of the Act, and the appeal is outside the scope of this Court’s jurisdiction. To elaborate, the order determines only a collateral, procedural right (the appellant’s right to have portions of the respondent’s pleadings excluded) without determining the substantive right that the underlying appeal seeks to assert (the appellant’s right to have the respondent’s reassessments vacated). Similarly, the motion at issue is not a "“proceeding”" for the purposes of this appeal, and is instead only a component of the appellant’s appeal from the respondent’s reassessments.

[4] This Court has confirmed that an order of the Tax Court with these effects is interlocutory, as opposed to final, in nature (National Benefit Authority Corporation v. Canada, 2022 FCA 17, 2022 D.T.C. 5011 at paras. 10-11, leave to appeal to SCC refused, 40137 (18 August 2022), applying Alderville at paras. 21-24). I add that this Court has also repeatedly characterized orders resulting from motions to strike portions of the Crown’s reply as interlocutory (Heron v. Canada, 2017 FCA 229, 2017 D.T.C. 5130 at para. 1; Tuccaro v. Canada, 2016 FCA 259, 2016 D.T.C. 5117 at paras. 1 and 27; Cameco Corporation v. Canada, 2015 FCA 143, 474 N.R. 333 at para. 1).

[5] The timing of the order further supports its characterization as interlocutory. Interlocutory decisions are typically made before the hearing of the matter as part of the resolution of a pre-hearing dispute; they are ordinarily not argued together, or otherwise intertwined, with the hearing on the merits which determines a party’s substantive rights (Sweet Productions Inc. v. Licensing LP International S.À.R.L., 2022 FCA 111, 2022 CarswellNat 2036 (WL Can) at paras. 27-28). The motion in this case was brought before the appeal on the merits in a step entirely separate from any determination of the appellant’s substantive rights. This degree of separation from the appellant’s original appeal simply confirms the conclusion that the order in issue is not a final judgment of the Tax Court.
. Canada (Attorney General) v. Johnson

In Canada (Attorney General) v. Johnson (Fed CA, 2023) the Federal Court of Appeal declined to remit an administrative decision back down, and decided it anew as the law was 'inevitable':
[17] For these reasons, I would allow the application for judicial review. Although courts should generally respect Parliament’s intention to entrust matters to administrative decision-makers, it may be appropriate to decline to remit a matter to an administrative decision-maker where it is evident to the Court that a particular outcome is inevitable: Canada (Attorney General) v. Burke, 2022 FCA 44 at paras. 115-117.

[18] In my view, given the law and the findings of fact in this case, no useful purpose would be served by remitting the matter back to the Social Security Tribunal (Appeal Division) for redetermination because only one reasonable conclusion would be open to it. Counsel for the applicant agrees. Accordingly, I would set aside the decision of the Social Security Tribunal (Appeal Division) dated May 10, 2022 and, giving the order it should have given, allow the Commission’s appeal of the decision of the Social Security Tribunal (General Division), all without costs.
. Coote v. Canada (Human Rights Commission)

In Coote v. Canada (Human Rights Commission) (Fed CA, 2021) the Federal Court of Appeal considered it's inherent authority to dismiss an appeal:
[16] In addition to the authority conferred by rule 74, the Court has jurisdiction to manage and regulate particular proceedings before it and, where appropriate, summarily dismiss an appeal by using its broad plenary powers. These powers have frequently been used, for example, to reject proceedings that are, among other things, frivolous or an abuse of the process of the Court (Fabrikant v. Canada, 2018 FCA 171, at para. 3). Recently, in Dugré v. Canada (Attorney General), 2021 FCA 8, the Court had this to say on the origin and underlying principles of its plenary powers:
[19] This Court has jurisdiction to summarily dismiss an appeal. Although the Federal Courts Rules, SOR/98-106 (the Rules) do not contain any specific provision allowing for the summary dismissal of an appeal, the Court has exercised this jurisdiction for decades (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588 (C.A.), at page 600).

[20] This power stems from the Court’s plenary jurisdiction (Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50, 443 N.R. 378, at para. 36; Lee v. Canada (Correctional Service), 2017 FCA 228 [Lee], at para. 6). This Court has not only the powers conferred by statute but also the powers necessary for its effective functioning (Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, 224 N.R. 241; Lee, at paras. 2, 7-15; Fabrikant v. Canada, 2018 FCA 171, at para. 3 and the cases cited therein). As the Court explains in Lee, the Federal Courts, as part of the judicial branch of the government, must have the powers necessary to manage their own proceedings (Lee, at para. 8).

[21] This power also manifests itself in the Rules through the combined effect of Rule 74 (removal of proceedings brought without jurisdiction), Rule 4 (the gap rule) and Rule 55 (power to vary a rule, in this case Rule 74, in “special circumstances”).
. Democracy Watch v. Canada (Attorney General)

In Democracy Watch v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered factors involved when a single judge of the court, hearing an interlocutory injunction, should refer the matter to a full panel:
D. The jurisprudence on whether the motion should be decided now

[20] Interlocutory motions such as this are heard by a single judge of this Court. Where appropriate, the judge can decline to deal with the motion and adjourn it to the appeal panel for its consideration. This is a discretionary call based on certain principles. The most complete, recent discussion of these principles is found in Mediatube Corp. v. Bell Canada, 2018 FCA 127, 156 C.P.R. (4th) 289.

[21] Rule 3 in the Federal Courts Rules, S.O.R./98-106 governs the Court’s discretion: the Court is to "“secure the just, most expeditious and least expensive determination of every proceeding on its merits”". Amgen Canada Inc. v. Apotex Inc., 2016 FCA 196, 487 N.R. 202 spells out some of the more salient elements in Rule 3 that affect the Court’s discretion (at para. 10):
Where the motion is clear-cut or obvious, it might as well be decided right away. Efficiency and judicial economy support this: Collins v. Canada, 2014 FCA 240, 466 N.R. 127 at paragraph 6; Canadian Tire Corp. Ltd. v. P.S. Partsource Inc., 2001 FCA 240, 267 N.R. 135. However, if reasonable minds might differ on the outcome of the motion, the ruling should be left to the panel hearing the appeal: McKesson Canada Corporation v. Canada, 2014 FCA 290, 466 N.R. 185 at paragraph 9; Gitxaala Nation v. Canada, 2015 FCA 27 at paragraph 7. Sometimes the novelty, quality or incompleteness of the submissions may make it sensible to leave the motion for the appeal panel to determine: Gitxaala Nation, above at paragraphs 9-12.

(See also Mediatube at paras. 9-11 and Canada (Attorney General) v. Oshkosh Defense Canada Inc., 2018 FCA 102 at paras. 40-42.)
[22] Another important factor is whether an advance ruling would allow the hearing to proceed in a more timely and orderly fashion: Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189 at para. 11, citing Collins v. Canada, 2014 FCA 240, 466 N.R. 127 at para. 6 and McConnell v. Canada (Canadian Human Rights Commission), 2004 FC 817, 51 C.H.R.R. 228, aff’d 2005 FCA 389; see also Mediatube at paras. 12-13.


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