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The Conduct of an Appeal

Recent Developments in Canadian Appellate Law and Practice

British Columbia (Police Complaint Commissioner) v The Abbotsford Police Department: Determining Whether an Appeal is Civil or Criminal in Nature

Posted in Jurisdiction: Civil Matters, Jurisdiction: Criminal Matters

The British Columbia Court of Appeal in British Columbia (Police Complaint Commissioner) v The Abbotsford Police Department, quashed an appeal of an order that directed sealed materials relating to confidential informants be returned back to police departments. In doing so, the court had to determine whether the appeal was civil or criminal in nature, and provided an overview of the law determining the nature and character of appeals. Since the appeal was found to be in criminal in nature, the court lacked the jurisdiction to hear the appeal, as the Criminal Code does not provide for interlocutory appeals.

The court added that, in the alternative, the appeal was denied on the grounds that informer privilege cannot be balanced against other policy considerations or goals to expand the circle of privilege.

Determining the Nature and Character of Appeals: Civil or Criminal?

The British Columbia Court of Appeal affirmed the legal test for determining the nature and character of appeals. The court said:

[52]    Counsel also seem to agree that the following passage from E.G. Ewaschuk, Criminal Pleadings and Practice in Canada (2nd ed., looseleaf) correctly states the law:

An appeal is either civil or criminal in nature. The nature and character of the appeal is not determined by the result of the proceedings being appealed from but, rather, by the nature of the law upon which the proceedings are based. The test is whether the proceedings being appealed are criminal or civil in nature and founded on the federal criminal law power, or whether the proceedings are civil in nature and founded on provincial legislative powers. [At 23–4; emphasis added.]

This passage has been approved by this court: see R. v. Ciancio 2006 BCCA 311 (CanLII) at para. 18; R. v. Sandhu 2012 BCCA 73 (CanLII) at para. 18; Hells Angels at para. 144.

While the respondent Abbotsford Police Department submitted that the “law upon which the proceedings are based” was criminal law, the appellant Police Complaint Commissioner submitted that the application below was civil since it was founded on Rule 8-1 of British Columbia’s Civil Rules. The court did not accept the appellant’s “rather literal” view, which would have, per Director of Civil Forfeiture v Hells Angels Motorcycle Corporation, elevated form over substance:

[59]        From the foregoing, I take two propositions. First, even if the application had been brought in a civil action, that fact would not have been determinative, as doing so would elevate form over substance. Second, the Code creates a comprehensive regime for the sealing and unsealing of packets. Once a packet has been sealed in connection with an authorization given under Part VI of the Code, only those judges specifically permitted by the Code, in the circumstances delineated by the Code, may unseal the packet, and only for the purposes implicit or expressed in the Code[…]

Noting that the sealing orders and applications for disclosure were first made in a criminal proceeding, the court found that the application was criminal in nature and thus denied the appeal for lack of jurisdiction:

[67]        Unlike CBC, the case at bar of course involves the privilege that protects confidential informants – an objective that will not end when Cst. A.B. and any other persons also charged, have been tried. It cannot be said that the unsealing of the packets will not “affect” sealing orders made in criminal proceedings for the protection of informants or, equally important, the informants themselves (who with the Crown are the beneficiaries of the secrecy rule). The application for disclosure to Sgt. Mullin was first made in the criminal proceeding of R. v. A.B. and in my opinion has, like the “matter” in Angel Acres, not lost its criminal character by reason of the change in the style of cause or the PCC’s invocation of the Civil Rules and the inherent jurisdiction of the Supreme Court of British Columbia.


[69]        In the result, I conclude that although the PCC purported to frame his application as civil in nature, an application to obtain access to a packet that has been sealed in a criminal proceeding must, in the context of the law as it now stands, be treated as criminal in nature. It follows that the order made by the Associate Chief Justice on March 11, 2015 was also criminal and that no appeal to this court is available. On this basis, I would quash the appeal.

Mardonet v. BDO Canada LLP: Orders Quashing Summons to Parties are Interlocutory and not Final

Posted in Interlocutory v Final Orders, Jurisdiction: Civil Matters

The Ontario Court of Appeal in Mardonet v. BPO Canada LLP determined that a motions judge’s order quashing a summons to a party is interlocutory, even if the summons is issued for a motion in which the party is not involved.

In Mardonet, the plaintiff sued the appellants to recover funds that were allegedly misappropriated and alleged that the moving parties were negligent in conducting audits and failing to detect the misappropriation of funds. The plaintiff moved for a Mareva injunction against the appellants, who in turn served notices of examination against the moving parties. The notices of examination were quashed by a motions judge.

While the moving parties submitted that the order under appeal was interlocutory, the appellants submitted it was final. Relying on Smerchanski v. Lewis, which held that an order quashing a summons to a non-party was final because it finally disposed of the rights of both the non-party and the party who issued the summons, the appellants submitted that the moving parties were the effective equivalent of non-parties.

The Court of Appeal disagreed with the appellants, finding that since the moving parties are parties to the action the order is interlocutory:

[8]         We conclude that the order under appeal is interlocutory and that the appeal must be quashed. The key factor in this court’s decision in Smerchanski was that the summons was issued to a non-party. That is not this case. The moving parties are parties to the action. The reasoning in Smerchanski does not apply. The order under appeal does not finally determine whether the moving parties can be examined in the action.

[9]         Further, the fact that the motion judge’s decision may finally determine whether the moving parties can be examined in relation to the Mareva injunction does not make the motion judge’s order final. The motion judge’s order does not terminate the underlying action or resolve a substantive claim or defence of one of the parties. To hold that the motion judge’s order is final because it determines whether parties to an action can be examined in relation to an interlocutory motion would effectively eliminate the distinction between interlocutory and final orders: see Waldman v. Thomson Reuters Canada Limited, 2015 ONCA 53 (CanLII), [2015] O.J. 395, at para 22.

AE Hospitality Ltd v George: Requirements of Test for Leave to Appeal Under Rule 62.02(4)

Posted in Appeals with Leave

AE Hospitality Ltd v George, 2015 ONSC 7370 dealt with the test for granting leave to appeal under Rule 62.02(4) of the Ontario Rules of Civil Procedure. On the issue of whether there was a “conflicting decision” as required by r. 62.02(4)(a), the fact that the motion judge declined to provide reasons on costs was not a sufficient conflict with existing case law. Further, Wilton-Siegel J. clarified that r. 62.02(4)(b) requires a party to demonstrate that there is “serious reason” to doubt that there was a proper basis for the costs award.


The defendants sought leave to appeal a costs order which awarded costs in favour of the plaintiffs in the amount of $30,000. Before making the costs award, the motion judge requested cost submissions be provided by March 30, 2015. The plaintiffs provided costs submissions according to this timeline; the defendants did not. The motion judge issued his decision on March 31, 2015. After receiving the costs award, the defendants inquired whether the motion judge would still accept their costs submissions. Although the motion judge accepted and reviewed the costs submissions, he did not change his award. The defendants sought leave to appeal this costs decision. The defendants argued that because the motion judge confirmed his original $30,000 costs award without providing any reasons, they were unable to tell if necessary adjustments were factored into the motion judge’s costs award.


The test for granting leave to appeal under r. 62.02(4)(a) requires that there be a “conflicting decision” and that it be “desirable that leave to appeal be granted.” The defendants argued that in the circumstances, they were entitled to written reasons providing an indication as to whether an adjustment was made in light of their costs submissions, and that without such reasons it was impossible to determine the reasonableness of the cost award. The defendants further argued that the lack of reasons in the circumstances of the case conflicted with the decisions of the Court of Appeal in Toronto Standard Condominium Corp No 1633 v Baghai Development Ltd, 2012 ONCA 417 and in United States v Yemec, [2006] OJ No 510 (SC).

Wilton-Siegel J. did not accept this argument. His Honour noted “These decisions can only constitute conflicting decisions to the extent that they evidence a principle that written reasons are required in all circumstances. There is no statutory or case law authority for such a principle.” Wilton-Stiegel J. further noted that neither s. 131 of the Courts of Justice Act, nor r. 57 require a court to provide written reasons for costs award.

Wilton-Siegel J. went on to find that the defendants had not satisfied the test for leave under r. 62.02(4)(b).  That is, Wilton-Siegel J. clarified that the test for leave under r. 62.02(4)(b) will only be satisfied where a party can demonstrate that there is “serious reason” to doubt that there was a proper basis for the costs award of the motion judge. On the facts of the case, the defendants were unable to meet this standard and leave was not granted.

Walchuk Estate v. Houghton: Final v. Interlocutory … Again

Posted in Interlocutory v Final Orders

In Walchuk Estate v. Houghton, the Ontario Court of Appeal dismissed a motion to quash an appeal on the basis that the lower court’s adjournment of a contempt motion was a final order. The decision also provides guidance, yet again, on the proper test for distinguishing between final and interlocutory orders.


In 2011, Walchuk obtained judgment against the appellant, Houghton, for $105,000. In December 2013, Walchuk attempted to examine Houghton in aid of execution on the judgment. Houghton did not attend the examination. Walchuk subsequently brought a motion for contempt. Harper J adjourned the contempt motion and ordered that Houghton attend an examination in aid of execution and produce the relevant documentation at the examination. While Houghton did attend the examination, he failed to bring any of the requested documentation. Moreover, the day before the scheduled examination, Houghton filed for bankruptcy.

Since Houghton failed to produce the requested documents, Walchuk renewed her motion for contempt. Houghton argued that pursuant to section 69 of the Bankruptcy and Insolvency Act, RSC 1985, the contempt proceedings against him were stayed. On March 9, 2015 Harper J concluded that section 69 did not stay the contempt proceedings against Houghton and ordered that the contempt motion be heard at a later date.

Houghton appealed this decision and brought a motion to stay the contempt proceedings pending the outcome of this appeal. Walchuk brought a cross-motion to quash the appeal.


The issue before the Court of Appeal was whether or not Harper J’s March 9, 2015 decision was a final or interlocutory order.

In order to address this issue, the Court of Appeal noted: “The starting point is to look at the judgment or order itself, and not the reasons for the judgment” (at para 12). However, the Court went on to say that “[I]n some cases, to determine whether an order is truly final or interlocutory, one needs to look at the reasons” (at para 14). The Court further clarified this test and stated: “If the reasons show that the defendant has been deprived of a substantive right or defence that could resolve all or part of the proceedings, then the order is final” (at para 14).

Here, Harper J’s judgment alone appeared to be interlocutory – it adjourned, rather than finally disposed of the contempt motion. However, the Court of Appeal held that this was an appropriate case to look to the reasons of the judgment. The Court of Appeal held that since Harper J determined that section 69 did not stay the contempt proceedings, Houghton was potentially deprived of a right or defence that would have ended the proceedings against him. On this basis, the Court of Appeal held that Harper J’s judgment was indeed a final order and thus, the motion to quash the appeal was dismissed.

R. v. Araya: Court of Appeal Decides “Rather Unusual Sentence Appeal”

Posted in Admitting Fresh Evidence, Powers: Criminal Matters, Sentence Appeals

In R. v. Araya, the Ontario Court of Appeal completed its review of a sentence for manslaughter nearly four years to the day from when the sentence was originally imposed. To borrow a phrase from Justice Laskin, the case is a “rather unusual sentence appeal” both for its procedural history and the Court’s discussion on admitting fresh evidence in a sentencing appeal.


When Mr. Araya was 18 years old, he participated in a robbery which resulted in the shooting death of a 17-year-old boy. Mr. Araya was convicted of manslaughter in November 2011 and sentenced to eight years’ imprisonment, less 15 months for time served in pre-trial custody.

Mr. Araya appealed both his conviction and his sentence to the Ontario Court of Appeal, where the majority allowed the conviction appeal and ordered a new trial. Chief Justice Strathy, dissenting, would have dismissed the conviction appeal. Despite their disagreement on the conviction appeal, however, all three judges agreed that, had the issue needed to be decided, they would have concluded that the trial judge erred in principle in sentencing Mr. Araya.

In light of Chief Justice Strathy’s dissent, the Crown appealed to the Supreme Court of Canada as of right. On March 13, 2015, the Supreme Court restored the conviction and remanded the matter back to the Court of Appeal to consider Mr. Araya’s sentence appeal.

Standard of Review

Writing for the Court, Justice Laskin affirmed the panel’s previous conclusion that the trial judge erred in principle in sentencing Mr. Araya. Under s.236(a) of the Criminal Code, the use of a firearm during the commission of manslaughter mandates a four year minimum sentence. Since s.236(a) already takes into account the fact that a firearm was used in the commission of manslaughter, the trial judge erred in treating it as an aggravating factor justifying a sentence beyond the mandatory minimum.

As a result of this error in principle, Justice Laskin held that the trial judge’s sentence was not entitled to deference and that the Court must, instead, impose the sentence it thinks fit. And as one of its tasks in determining a fit sentence, the Court first had to determine whether or not to admit fresh evidence relating to Mr. Araya’s current character.

Admission of Fresh Evidence

Mr. Araya asked the Court to admit six affidavits which spoke to his character and conduct following his original sentencing hearing and after his first appeal was considered by the Court two years ago. Justice Laskin referred to the fresh evidence as “akin to an updated pre-sentence report”, and divided it into four categories: evidence going towards Mr. Araya’s changed character; evidence of Mr. Araya’s academic and professional achievements; the opinions of Mr. Araya’s teachers, and evidence of Mr. Araya’s conduct while in custody.

Justice Laskin then set out the test for admitting fresh evidence on a sentencing appeal, noting that the four Palmer criteria of due diligence, relevance, credibility and impact on the result must be applied in the context of two competing interests: the desire to have current information about the offender and the importance of finality. He also noted that there is no fixed rule for when fresh evidence should be admitted on a sentence appeal.

In applying the Palmer factors, there was no question that the fresh evidence was relevant and credible. Rather, the Crown’s main reasons for opposing its admission were that: i) it did not meet the due diligence requirement, since it could have been filed in Mr. Araya’s first appeal to the Court of Appeal; and ii) it could have no effect on the result, since it added little to the extensive evidence of mitigation before the trial judge.

With regard to the due diligence argument, Justice Laskin found that while some of the fresh evidence could have been put before the panel in the previous appeal, that was over two years ago and without the fresh evidence, the Court would be left with an incomplete picture of Mr. Araya’s character today. He also concluded that the fresh evidence can reasonably be expected to have affected the sentence imposed on Mr. Araya.

Justice Laskin then highlighted two considerations which were important to his decision to admit the fresh evidence: the nature of the Court’s task and the passage of time. In particular, he held that:

“This is not the usual sentence appeal where we must give deference to the sentence imposed by the trial judge. Instead, we must determine a fit sentence for Araya. And we must do so nearly four years after he was sentenced by the trial judge and over two years after this panel heard his appeal. Because of these two considerations, the interest in finality has less weight than the desirability of having current information about the offender.” (at 39)

As such, Justice Laskin allowed the fresh evidence to be admitted.


After reviewing all the aggravating and mitigating factors, including the fresh affidavit evidence, Justice Laskin reduced Mr. Araya’s sentence to six years’ imprisonment, less the agreed on pre-sentence custody of 15 months, noting the evidence–particularly the fresh evidence–showed that Mr. Araya had “excelled in his rehabilitation”.

Graham v 10 Tecumseh: Whether Appeal Should be Dismissed for Delay Decided by Test for Extension of Time to File or Perfect an Appeal

Posted in Extension of Time, Procedure in Civil Appeals

In the Ontario Divisional Court case of Graham v 10 Tecumseh, the applicant failed to perfect his appeal in accordance with the time period required by Rule 61. The respondent, however, did not seek relief under R. 61.13 (dismissal for delay by the Registrar). Instead, the respondent brought a motion seeking an order dismissing the applicant’s appeal or, in the alternative, an order for security for costs of the appeal. In deciding these issues, Leitch J. applied the test for seeking an extension of time to either file or perfect an appeal. Leitch J. held that justice did not require an extension of time and the appeal should be dismissed for delay.

Background Facts

This case dealt with an appeal from a decision in which Miller J. held that there was a binding settlement agreement between the applicant and respondent, which entitled the respondent to enforce a commercial lease agreement. The applicant then brought a motion to stay Miller J.’s decision and for an injunction to be reinstated pending appeal. This motion was dismissed by Mitchell J. who noted that the time for appealing Miller J.’s decision would expire on May 24, 2015. The applicant failed to perfect the appeal within the time period required under R. 61.


In ruling on the issues, Leitch J. applied the test for seeking an extension of time to either file or perfect an appeal. That is, Leitch J. considered whether the appellant formed a bona fide intention to appeal within the relevant time period; the length of, and an explanation for the delay in filing; any prejudice to the responding party caused perpetuated or exacerbated by the delay; and, the merits of the proposed appeal. Leitch J. found that the justice of the case did not require an extension of time and the appeal was dismissed for delay.

Grand Financial Management Inc. v. Solemio Transportation Inc.: When New Issues May – and May Not – Be Raised on Appeal

Posted in Hearing New Issues on Appeal, Standards of Appellate Review

Grand Financial Management Inc. v. Solemio Transportation Inc., a March 2, 2016 decision of the Ontario Court of Appeal, discusses when it is appropriate to raise a new issue on appeal. In the context of a decision discussing intentional interference with economic relations, discussed in our Osler Update at this link, the Court also decided a number of issues related to appellate practice:

  • when a new defence should be permitted to be raised on appeal, whether:
    • specifically in response to an inadequate pleading in the court below; or
    • more generally; and
  • deference due to a trial judge in awarding “damages at large” for an intentional tort.


The trial judge awarded the plaintiff (“Grand Financial”) $200,000 in damages for sums allegedly owing to it under an agreement. This award was appealed partially because Grand Financial had not pleaded that it was owed this sum pursuant to the agreement upon which the trial judge found it was owed. The trial judge also held that Grand Financial had committed the tort of interference with economic relations, and therefore awarded the defendant (“Solemio”) $175,000 in “damages at large” on its counterclaim.

Permitting a New Defence on Appeal – Inadequate Pleadings

Justice Blair, for a unanimous Court of Appeal, set aside the award of $200,000 because Grand Financial’s pleading did not give the defendant Solemio adequate notice of the case it had to meet in respect of the theory accepted by the trial judge. As such, it was “technically unnecessary” to consider whether Solemio should be allowed to raise a limitations defence for the first time on appeal. Justice Blair nonetheless held that Solemio “ought not to be precluded” from doing so:

[55]      Solemio raised the limitation defence on appeal, arguing that it could not have done so earlier because the issue of Grand Financial’s right to recover under the Wild Lions Agreement was not pleaded at trial. Grand Financial disputes this and says that Solemio ought to have argued the defence at trial, that no evidence was led at trial on the limitations issue, and that Solemio ought not to be permitted to argue a new issue for the first time on appeal.

[56]      In this respect, Grand Financial relies on the following comments of this Court in Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350, at para. 3:

In Ross v. Ross (1999), 181 N.S.R. (2d) 22, the Nova Scotia Court of Appeal set out the test concerning receiving arguments for the first time on appeal. The court said that such an argument, “should only be entertained if the court of appeal is persuaded that all of the facts necessary to address the point are before the court as fully as if the issue had been raised at trial”. The rationale for the principle is that it is unfair to permit a new argument on appeal in relation to which evidence might have been led at trial had it been known the issue would be raised.

[57]      I shall return to this notion when dealing with Grand Financial’s contention that it is entitled to set-off its claim on the Wild Lions Agreement against the damages at large awarded in favour of Solemio – an argument also raised for the first time on appeal. I am satisfied, however, that Solemio ought not to be precluded from raising the defence, in this context, for the first time on appeal.

[58]      Having regard to my determination that the issue of Grand Financial’s right to recover under the Wild Lions invoices pursuant to the Wild Lions Agreement was not one that was properly before the trial judge, and therefore not one on which he could grant judgment, it is technically unnecessary to deal with the limitation defence raised by Solemio on appeal. Nonetheless, had the trial judge considered the claim under the Wild Lions Agreement to have arisen during the course of the trial, it would have been an error for him to have granted judgment, since the claim would have been statute barred on any interpretation of the record. The evidence was that by the end of January 2008, the monies were due and owing. Everyone was aware of that. By the time of trial, the two-year limitation period for initiating a claim had long expired.

Permitting a New Defence on Appeal – Generally

By contrast, Grand Financial was not permitted to raise a defence of “equitable set-off” in response to Solemio’s counterclaim for the first time on appeal. This defence was also based upon the amount allegedly owing to it pursuant to the other agreement. Justice Blair did not allow this as a more complete evidentiary record would have been necessary:

[94]      […] it is too late, in my view, for Grand Financial to raise this argument for the first time on appeal. Recall that Grand Financial itself argues that Solemio is foreclosed from raising the limitation period defence for the same reason, taking the position that it was incumbent upon Solemio to raise the limitation issue through evidence and argument at trial, and having failed to do so, Solemio, “as a matter of law forfeited [its] right to do so now for the first time on appeal”: see Ontario Energy Saving LP, at para. 3. Although I would not give effect to that argument with respect to Solemio’s limitation period defence, as explained above, that rationale does apply to preclude Grand Financial’s attempt to rely on equitable set-off at this stage of the proceedings, in my opinion.

[95]      Unlike Solemio with respect to the Wild Lions Agreement claim, Grand Financial knew from the outset that it was facing a Solemio counterclaim. It could have raised equitable set-off in that context, but did not do so. Equitable set-off was not pleaded, was not the subject of any evidentiary foundation (or counter-foundation), and was not argued. In short, it was not an issue to which either the parties or the trial judge turned their minds.

[96]      Grand Financial submits that, even in the absence of a plea of set-off and any joinder of issue on that point, the evidentiary foundation still exists for this Court to determine that equitable set-off applies. I disagree. There may be some evidentiary basis upon which to propose, or to oppose, the argument, but we do not know what other evidence may have been led, or arguments made, had it been known that the issue was in play.

[97]      Equitable set-off is a defence that is particularly rooted in the circumstances of the individual case. It requires, amongst other things, that the set-off claim go directly to impeach the plaintiff’s demands, the “plaintiff” in this case being Solemio and the “claim” being an award of damages to compensate it for harm suffered as a result of an intentional wrongdoing – the tort of interference with economic relations. To put it another way, the defence requires that the set-off claim be so closely connected to the plaintiff’s demands that it would be “manifestly unjust” to allow the plaintiff (Solemio) to enforce payment without taking into account the set-off claim:  […]

[98]      In addition, the application of equitable set-off is subject to the equitable doctrine of “clean hands”. The courts will not allow a party to set-off “where there [is] an equity to prevent [the party from] doing so; that is to say, where the rights, although legally mutual, [are] not equitably mutual”: […] Here, Grand Financial seeks to set off against its contractual claim under the Wild Lions Agreement Solemio’s judgment for damages caused by Grand Financial’s own intentional wrongdoing, albeit a wrongdoing that may have some connection with, or arise from, the issues regarding the Wild Lions Agreement. Whether equitable set-off would be available as a defence in such circumstances is something that would require viva voce evidence and credibility findings made during an assessment focused on that particular issue.

[99]      All of these considerations underscore the need for a trial record focused on the set-off issue to enable effective appellate review. It does not exist in this case.

Standard of Review for Awarding “Damages at Large”

Both Solemio and Grand Financial also argued that the trial judge had erred in his approach to calculating “damages at large” for the intentional tort. Justice Blair did not accept this, as deference was owed to the trial judge:

[89]      … damages at large are “a matter of impression” and are not something that can be precisely measured.  It is difficult for an appellate court to say that the assessment is plainly erroneous in such circumstances: […]. While I may not have arrived at the amount of $175,000, I cannot say that the trial judge erred in principle in doing so. He properly took into account all of the relevant factors in arriving at his conclusion.

Hoang v Mann Engineering Ltd.: Court of Appeal Invokes Rule 2.1 to Dismiss Frivolous Motion

Posted in Motions

The Ontario Court of Appeal in Hoang v Mann Engineering Ltd.,  2015 ONCA 838 used Rule 2.1 to dismiss the appellant’s frivolous motion. While the respondents’ primary argument was that Rule 61.16(6.1) of the Rules of Civil Procedure prohibited the appellant’s motion, the respondents’ relied on Rule 2.1 in the alternative. In dismissing the motion, the court held that the appropriate avenue for arguing that the Court of Appeal made an error in law was to apply for leave to appeal to the Supreme Court, and not to bring a motion under Rule 59.06 to amend the order.

The appellant had commenced a suit for damages for wrongful dismissal, breach of contract, and withheld sales commission, which the trial court dismissed. The Court of Appeal, in an earlier decision, allowed an appeal in part. The appellant then brought forward a motion at the Court of Appeal, in front of a differently constituted panel, seeking to amend that court’s earlier decision.

The respondents’ position was that:

[10]       In response to Mr. Hoang’s motion, the respondents submit that the relief sought is barred by rule 61.16(6.1), which provides:

Subject to rules 37.14 and 59.06, an order or decision of a panel of an appellate court may not be set aside or varied under these rules.

[11]       Alternatively, the respondents submit that Mr. Hoang has provided no compelling reason to re-open his appeal, but instead reiterates the same arguments made on two previous occasions. They request that, in these circumstances, this court should consider using its power under rule 2.1.02 to declare this motion frivolous, vexatious or otherwise an abuse of the process of this court and to prohibit Mr. Hoang from making any further motions in this proceeding without leave.

The Court of Appeal’s decision did not deal with whether Rule 61.16(6.1) barred the relief sought, instead finding that there was a “sound basis” for exercising its powers under Rule 2.1:

[13]       On the motion, Mr. Hoang has not identified any circumstances that would justify ordering a re-hearing of an appeal by a differently constituted panel. He is merely attempting to re-argue what are in essence the same arguments advanced on the original appeal and in the post-hearing submissions. That is, that the trial judge erred in concluding that the offer letter of April 21, 2011 was not accepted and that Mr. Hoang was terminated for cause.

[14]       Mr. Hoang is arguing that the appeal panel erred in law and in fact by upholding the trial judge’s order and so the appeal should be re-heard. As indicated by the panel in its previous endorsement, these are arguments that should be made to the Supreme Court of Canada on an application for leave to appeal.

The court also emphasized that relief under Rule 59.06 is granted only in narrow circumstances:

[15]       It needs to be emphasized that rule 59.06 provides for a very narrow jurisdiction to set aside or vary an order made by a panel. Any motions relying on this rule will be monitored by the court under rule 2.1.02 to ensure that the motion is not frivolous, vexatious or otherwise an abuse of the process of the court: see for example, Gallos v. Toronto (City), 2014 ONCA 818. This case does not fit within the very narrow jurisdiction of rule 59.06, but is one that on its face fits within rule 2.1.02(1).

R v Jackson: Ontario Court of Appeal hears Moot Appeal regarding Disclosure Application

Posted in Discretion Not to Hear Moot Appeals, Powers: Criminal Matters

In R v Jackson, the Ontario Court of Appeal made an order quashing a disclosure order made in the context of a impaired driving case. After receiving the usual disclosure provided on these cases, the accused applied for an order requiring disclosure of further records related to the history and performance of the device that measured his blood alcohol concentration. The trail judge ordered this disclosure which was subsequently upheld by a judge of the Superior Court of Justice.


Both the Crown and the Ottawa Police Service (“OPS’) appealed the disclosure order. The appeal raised two preliminary issues: whether OPS had the right to appeal the decision of the motion judge; and whether the court should exercise its discretion to hear the appeal despite its mootness.

Critically, in this case the records in question were in the possession of the OPS. Moreover,  OPS failed to attend the hearing of the application for disclosure, despite being served. Additionally, at the time of the appeal, the requested documents had already been disclosed to the accused.

The decision also addressed substantive issues related to Stinchcombe disclosure obligations and the O’Connor third party production regime.


The respondent accused argued that the Court of Appeal should not entertain an appeal by OPS because of its failure to appear before the trial judge. Despite this, the Court of Appeal held that the OPS had the right to appeal the order that it disclose the requested materials for the following reasons:

[41]      First, the original application was styled “O’Connor/Stinchcombe Application” revealing some uncertainty on the part of the respondent about whether the records sought were subject to the first party disclosure regime of Stinchcombe or the third party scheme of O’Connor.

[42]      Second, the respondent did not follow the procedure mandated by O’Connor for third party records. The respondent did not serve a subpoena duces tecum on the OPS as the third party record-holder. That the OPS chose to regard service upon it as deficient is neither here nor there to its status as a third party record-holder.

[43]      Third, as the putative third party record-holder, the OPS was entitled to invoke the extraordinary remedy jurisdiction of the superior court of criminal jurisdiction to quash the order made by the trial judge based on either jurisdictional error or error of law on the face of the record.

[44]      Fourth, as an unsuccessful applicant before the superior court of criminal jurisdiction, the OPS is entitled to invoke s. 784(1) of the Criminal Code to appeal to this court.

The second threshold issue considered by the Court of Appeal was mootness. In this case, the records sought and ordered disclosed by the trial judge had already been provided. The Court of Appeal articulated the test applicable when a party urges mootness and seeks to disentitle the opposing party to a hearing or decision on this basis. The court stated that:

[52] “[t]he court must first determine whether the essential tangible and concrete dispute – the lis inter partes– has disappeared and the issues have become academic. An affirmative response at this first step requires the court to determine next whether it should exercise its discretion to hear and decide the case (references omitted).

[53]      To decide whether to exercise its discretion to hear and determine an appeal that is moot, a court should consider the extent to which each of the three distinct rationalia for the mootness doctrine is present:

  1. that a court’s competence to resolve legal disputes is rooted in the adversary system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;
  2. the concern for judicial economy; and
  3. the need for the court to demonstrate an awareness of its proper law-making function and the limits of that function so as to avoid intrusions into the role of the legislative branch (references omitted).

The Court of Appeal held that for several reasons, the court should exercise its discretion to determine the substantive issues raised on appeal. First, the issues raised were of common occurrence in the prosecution of alcohol driving offences. Second, the ruling was interlocutory and thus, would avoid appellate review until the final adjudication on the adequacy of the Crown’s proof. Third, the third party and the intervener have interest in clarifying this issue of what disclosure and production is required regarding these records. Fourth, the Court of Appeal had the benefit of full argument on the issues. Finally, the Court of Appeal found the record to be adequate to make an informed decision on the issues in dispute.

On the substantive issues, the Court of Appeal found that the records requested by the accused were in the possession of the exclusive control of the OPS, who was a third party to these proceedings. As such, the court held that the records sought did not engage the first party disclosure scheme of Stinchcombe, but rather were records in the hands of third parties (OPS) to be disclosed where “likely relevant” and “reasonably available” according to the O’Connor regime. Based on the circumstances of the case, the Court of Appeal held that the respondent failed to meet the “likely relevant” standards as required by the O’Connor production regime. On this basis, the court quashed the disclosure order.

Peavine Metis Settlement v Whitehead: When can a Non-Party to a Proceeding Bring an Appeal?

Posted in Appeals with Leave, Jurisdiction: Civil Matters

In its decision in Peavine Metis Settlement v Whitehead, the Alberta Court of Appeal provided guidance on when a non-party to a proceeding can be granted leave to appeal the outcome of that proceeding.

In this case members of the Gift Lake Metis Settlement were given the opportunity to vote on the merits of bylaws granting membership to two individuals, Lyle Whitehead and Brandon Laboucane. Lester Calaheson, a member of the Gift Lake Metis Settlement, objected to the validity of the voting list, which was also the membership list. Mr. Calaheson contented that there were individuals on the voting list who were not eligible for membership. The members approved the membership applications and bylaws were passed granting membership to Whitehead and Laboucane.  Mr. Calaheson appealed to the Metis Settlement Appeal Tribunal asking it to set aside the approval of the membership bylaws. However, the Appeal Tribunal upheld the position adopted by the Gift Lake Metis Settlement as lawful.

Subsequently, three Metis settlements brought a motion for leave to appeal the Metis Settlement Appeal Tribunal’s decision. However, none of the three settlements were parties to the proceedings before the Appeal Tribunal. The issue before the Court of Appeal was whether it had jurisdiction to permit a non-party to the proceedings to file a leave to appeal application.

The Court held that whether a non-party may file a notice of appeal is a question of law. The Court then stated that pursuant to the Judicature Act (RSA 2000, c J 2), it has jurisdiction to “hear and determine…all questions or issues of law.”

The Alberta Court of Appeal stated that an appeal is a statutory right;  a person cannot appeal or seek leave to appeal without statutory authorization. The general rule is that only parties to a proceeding may seek leave to appeal. Where a statute confers a right of appeal on a non-party, the general rule is displaced. Additionally, the Court may grant permission to appeal to a non-party if the decision sought to be appealed: orders the non-party to do or refrain from doing something; or directly affects important interests of the non-party; or if the non-party could have been a party in the proceedings below.

In this case, neither the Metis Settlement Act (RSA 2000 c M 14) nor the Alberta Rules of Court (Alta. Reg. 124/2010) provides any specifications on who can seek permission to appeal.

Since  there was no statutory provision that granted the applicants the right to seek permission to appeal, the general rule – that only parties can seek permission to appeal – was applicable. The Court found that none of the extraordinary circumstances that cause appeal courts to grant leave to appeal to non-parties were present. As such, the Court of Appeal dismissed the application.