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The Conduct of an Appeal

Recent Developments in Canadian Appellate Law and Practice

McLean v. Knox: Finding facts at first instance on appeal

By Mark A. Gelowitz on Posted in Powers: Civil Matters

When should the Court of Appeal determine a factual issue as a matter of first instance? And how does it go about doing that? The Ontario Court of Appeal faced these questions in McLean v. Knox (http://www.ontariocourts.ca/decisions/2013/2013ONCA0357.htm).

The genesis of the case was a car accident where the plaintiff was injured as a result of Knox’s drunk driving. The plaintiff sued several parties, but after Knox was noted in default, and Finnigan’s (the bar where the plaintiff and Knox had been drinking) admitted “at least 1% liability”, the other defendants were released and the claim went to trial to determine the plaintiff’s damages, and apportion liability between Knox, Finnigan’s and the plaintiff himself (contributory negligence for accepting a ride with a clearly intoxicated driver). The jury assessed the plaintiff’s damages under various heads and, despite its assessment being challenged before the trial judge and the Court of Appeal, the Court of Appeal upheld the jury’s amounts. The jury also apportioned liability as follows:

Knox: 84%

Finnigan’s: 1%

McLean: 15%

The Court of Appeal accepted the plaintiff’s submissions that the trial judge’s instructions erroneously led the jurors to believe that 1% was the only figure they could return for the liability of Finnigan’s, nor did the instructions adequately convey that the plaintiff’s decision to accept a ride with Knox, and thus his contributory negligence, was arguably in part due to Finnigan’s overserving him as well. The plaintiff thus sought a new trial on everything except Finnigan’s admitted liability. Gillese J.A. refused to so order:

[84]        I would not accede to this submission. As I have mentioned, this case is very similar to Pilon #1. In Pilon #1, this court found that the legal errors in the jury instructions would normally result in a new trial being ordered. However, it declined to order a new trial and, instead, decided the issue of apportionment itself. In refusing to order a new trial, the court considered the amount of time that had passed since the accident, the length of the original trial, and the costs involved in a new trial.

[85]        Those same considerations apply to the present case. The accident in this case took place in 2005. It is now 2013. Memories will be stale. The trial took place over 13 days and involved extensive medical evidence. The costs involved in a new trial would be very significant. Those costs must be considered alongside the very modest amounts that the jury awarded for damages. Apart from the amount that the jury awarded for future income loss, there was no real challenge to those awards.

[86]        A new trial in a civil case will only be ordered when the interests of justice plainly require it: see Fiddler v. Chiavetti, 2010 ONCA 210, 317 D.L.R. (4th) 385, at para. 9. For the reasons given, the interests of justice augur against ordering a new trial. Instead, this court should perform the apportionment task that the jury ought to have been instructed to perform.

[87]        If the parties are unable to resolve the apportionment issues, they may make brief written submissions, not to exceed eight pages, within fifteen days of the date of release of these reasons, on the issue of the apportionment of liability for the plaintiff’s damages. …

She added that those submissions should also address a subsidiary issue which the plaintiff had raised as an alternative ground in his appeal: the apportionment of the deductible, which was “interrelated” to the apportionment of liability. She provided specific guidance on how that issue should be addressed.

The decision shows that, while the Court of Appeal is not a fact-finding Court, it nonetheless will not order a new trial in circumstances where the “interests of justice” do not warrant it and instead take on that role itself.

A.G. Clark Holdings Ltd. v. HOOPP Realty Inc.: Appeals from Decisions Finding No Mandatory Arbitration Agreement Not Precluded by Alberta’s Arbitration Act

By Mark A. Gelowitz on Posted in Jurisdiction: Civil Matters

Much like in other jurisdictions, Alberta’s Arbitration Act provides that there is no appeal from a court’s decision to stay (or not stay) proceedings in respect of a dispute that is subject to a mandatory arbitration agreement (s. 7(6)). According to a recent decision of the Alberta Court of Appeal, however, this does not bar an appeal from an order which held that there was no mandatory arbitration agreement in the first place. The Court’s reasons can be found at this link:

A.G. Clark Holdings Ltd. v HOOPP Realty Inc., 2013 ABCA 101 (CanLII)

In the court below, the chambers judge held that the parties had not entered into a mandatory arbitration agreement, and, therefore, he refused to stay the respondent’s proceeding pursuant to s. 7 of the Arbitration Act. The relevant portions of that provision read as follows:

7(1)  If a party to an arbitration agreement commences a proceeding in a court in respect of a matter in dispute to be submitted to arbitration under the agreement, the court shall, on the application of another party to the arbitration agreement, stay the proceeding.

[...]

(6)  There is no appeal from the court’s decision under this section.

The unsuccessful applicant appealed from that order, and the respondent argued as a preliminary matter that the appeal was barred pursuant to s. 7(6) of the Arbitration Act. The Court of Appeal disagreed. In its view, if the judge at first instance concluded that there was no arbitration agreement upon which the proceedings could be stayed, as here, s. 7(6) is not applicable and cannot preclude an appeal. Put otherwise, s. 7(6) does not immunize from appeal a chambers judge’s decision that the parties had not entered into an arbitration agreement for the purposes of the Act. The Court thus proceeded with the appeal, concluding that the court below erred in its interpretation of the party’s agreement. It was, properly construed, an arbitration agreement. The matter was thus sent back for a determination as to whether the proceedings should be stayed.

The critical passages from the Court’s decision are as follows:

Does s 7(6) of the Arbitration Act prevent this appeal?

[6] We have considered whether s 7(6) of the Arbitration Act prevents this appeal. In our view, it does not.

[7] Section 7(1) of the Arbitration Act states that if a party to an arbitration agreement commences a court proceeding in respect of a matter to be submitted to arbitration under the agreement, the court shall, on the application of another party to the agreement, stay the proceeding. The sub-sections following go on to describe situations in which a stay of proceedings may be denied (s 7(2)) and in which a partial stay may be granted (s 7(5)). The last sub-section, s 7(6), continues:

(6) There is no appeal from the court’s decision under this section.

[8] The question is whether s 7(6) prohibits appeal in all circumstances. There is no Alberta case law on all fours with this case. Section 7(6) was considered by this Court in a slightly different context in Lamb v AlanRidge Homes Ltd, 2009 ABCA 343 (CanLII), 2009 ABCA 343, 464 AR 46. In Lamb, a chambers judge found that all the claims made in the court proceedings against the applicant were within the scope of the arbitration agreement. He also concluded, however, that the lawsuit included non-arbitrable matters involving other parties, leading him to consider whether he should grant a partial stay under s 7(5) of the Act. He declined to do so. The Court of Appeal refused to hear an appeal of that decision on the basis that the “chambers judge’s decision not to grant the stay was clearly made under the section”, so that subsection 7(6) applied.

[9] The Court in Lamb referred to a decision from Ontario in which that Court of Appeal had dealt with virtually identical legislation and a similar factual situation: Radewych v Brookfield Homes (Ontario) Ltd, 2007 ONCA 721 (CanLII), 2007 ONCA 721. In Radewych, the motion judge exercised his discretion under s 7(5) to direct that an entire claim proceed to trial, having concluded that a partial stay would be inappropriate because of the presence of parties to whom the arbitration agreement did not apply. In declining to hear an appeal from that decision, the Court of Appeal said, at para 4, “[h]is decision in that regard falls squarely within s 7(5) of the Arbitration Act and as such, s 7(6) of that Act applies and renders his decision unappealable.”

[10] Radewych is a very brief decision that relies on an earlier decision of the Ontario Court of Appeal, Brown v Murphy 2002 CanLII 41652 (ON CA), (2002), 159 OAC 75, 59 OR (3d) 404; the latter case is not mentioned in Lamb. In Brown v Murphy, the Ontario court distinguished between decisions made by a motions judge to grant or refuse a stay for the reasons set out in s 7, and decisions that amount to a preliminary interpretation of the arbitration agreement. The court concluded, at para 8:

. . . the bar under s 7(6) applied to any decision by the motions court under s 7 to grant or refuse a stay of “a proceeding in respect of a matter to be submitted to arbitration under the agreement” within the meaning of s 7(1). However, a decision by the motions court that a matter was not subject to arbitration under the terms of the arbitration agreement fell outside the scope of s 7 and a right of appeal lay to this court from that decision. (Emphasis in original)

[11] The same reasoning has been repeatedly applied in Ontario: see, for example, Huras v Primerica Financial Services Ltd 2000 CanLII 16892 (ON CA), (2000), 137 OAC 79 andGriffin v Dell Canada Inc, 2010 ONCA 29 (CanLII), 2010 ONCA 29 at para 25. The reasoning has also been adopted by the appellate courts of Manitoba and New Brunswick: see Hnatiuk v Court, 2010 MBCA 20 (CanLII), 2010 MBCA 20, 251 Man R (2d) 178 at para 30 and Opron Maritimes Construction Ltd v Irving Oil Ltd, 2011 NBCA 60 (CanLII), 2011 NBCA 60, 336 DLR (4th) 129 at paras 31-41. All of those provinces have similar, if not identical, arbitration legislation to that in force in Alberta.

[12] This Court also recently heard an appeal from a decision to stay proceedings that had been brought by a non-party to the arbitration agreement. The applicability of section 7(6) was not discussed in that decision, however, so it is of limited use in this analysis: Yaworski v Gowling Lafleur Henderson LLP, 2013 ABCA 21 (CanLII), 2013 ABCA 21.

[13] We have concluded that the situation in this case is more similar to that faced by the appellate courts in Brown v Murphy, Hnatiuk v Courtand Opron Maritimes than to the situation in Radewych. We agree with the conclusion reached by Richard JA of the New Brunswick court that, if the motion judge holds there is no applicable arbitration agreement upon which the proceedings could be stayed, then s 7(6) cannot be successfully invoked to bar an appeal: see Opron Maritimes at para 40. In such circumstances, the usual litigation process is followed. The litigants are entitled to access all the court processes, including appellate review, the agreement itself having been determined to fall outside the provisions of the Arbitration Act. If the agreement is outside the scope of the Act, s 7(6) can have no application.

[14] Applying that reasoning to this case, the initial issue before the chambers judge involved an interpretation of the parties’ agreement. Only if that agreement contained a mandatory arbitration clause would s 7 of the Arbitration Act apply. The chambers judge concluded that the agreement did not contain such a clause and he did not, therefore, address the application of s 7 to these parties and this dispute. The chambers judge’s decision on that preliminary issue is subject to appeal. If, on appeal, we determine that the agreement does contain a mandatory arbitration clause, then the Act will apply and the dispute must go back to Queen’s Bench for a determination of the issues not addressed by the chambers judge. The Queen’s Bench determination of those issues, involving the application of s 7, will not be subject to appeal.

 

Johnson v. Jordan: Time to Appeal in Family Law Matter Runs From Notice of Entered Formal Order (Where it is Unclear what was “Pronounced” Orally)

By Mark A. Gelowitz on Posted in Jurisdiction: Civil Matters

It is not uncommon for case management judges to direct counsel to prepare draft orders encompassing their oral pronouncements. In some cases, however, it is unclear at the time of the request what the judge actually “pronounced”. The Alberta Court of Appeal recently held that, when such situations arise in the family law context, the time to appeal does not start running until the appellant receives notice of the entered order. The Court’s reasons can be found here:

Johnson v. Jordan, 2013 ABCA 55 (CanLII)

Johnson involved a family law matter where only the children were represented by counsel. The parents were self-represented. During the course of a case management hearing, on October 30, 2012, counsel for the children asked the judge for a risk and psychological assessment of the father. The judge directed the lawyer to prepare a draft order containing her recommendations, which the judge summarized as “a risk assessment, psychological evaluation, concept therapeutically managing access for the benefit of the children, leave of the court before any further applications are brought and a process for that applicable to both parties.” The judge stated that he would “consider” the draft order and grant it, or something similar, if appropriate.

Counsel for the children completed the draft order and emailed it to the parents and the judge on December 3, 2012. The draft order stated that its date of pronouncement was October 30, 2012.

The father (the applicant) did not comment on the draft order, and it was entered on December 13, 2012. The filed order came to the father’s notice five days later, on December 18, 2013. Three days after that, he filed his notice of appeal. He also applied for an extension of time. If the time to appeal started running with the date of pronouncement indicated on the face of the order (October 30, 2012), the father would have been out of time. The one month deadline had passed.

Sitting alone, Justice Rowbotham concluded that an extension of time was unnecessary: The father had, in fact, filed his notice of appeal within the time prescribed by the Rules of Court, Family Law Rules. In her view, the time started running on December 18, 2012 – the date the father received notice of the filed order. Notwithstanding that the entered order stated that it was pronounced on October 30, 2012, it was not actually clear on that date what the judge had “pronounced”. Justice Rowbotham was satisfied that the father had not received notice of the order that was, in fact, made until December 18. His notice of appeal was thus filed on time.

The critical passages from Justice Rowbotham’s decision are as follows:

[5] The applicable rule is found in the Part 12 of the Rules of Court, Family Law Rules. Rule 12.60 provides:

12.60(1) Subject to subrule (2), a decision of the Court sitting as an original court under the Family Law Act may be appealed to the Court of Appeal in accordance with Part 14.

(2) Notwithstanding Rule 506 of the Alberta Rules of Court (AR 390/68), the notice of appeal must be filed and served

(a) within one month following the date on which the order being appealed was pronounced, or

(b) if the appellant is able to establish to the Court’s satisfaction the date on which the appellant received notice of the order, within one month following that date.

[6] The applicant relies on Rule 12.60(2)(b),while the respondent submits that the date of pronouncement is the relevant date.

[7] I conclude that the time period did not commence on October 30, 2012. The case management judge indicated that he would “consider” the draft order and that if it was “appropriate, [...] grant it or something like it.” In my view he did not pronounce the order on that date. Accordingly, Rule 12.60 (b) applies. The respondent contends that the applicant received notice of the order on November 15, 2012, when he received the transcript of the October 30, 2012 appearance, and as a result the notice of appeal is still out of time. But the transcript merely supports the notion that it was unclear what was “pronounced” on October 30. I am satisfied that the applicant received notice of the order on December 18, 2012 when he received a copy of the filed order.

[8] In conclusion, the notice of appeal was filed within the time period prescribed in the Rules. There is no need to consider the application to extend the time for filing a notice of appeal. The parties are directed to file the balance of their materials in accordance with the Rules as if the notice of appeal had been filed as of the date of this judgment.

 

BDC v. Pine Tree: Leave to appeal required for appeal to the Court of Appeal from an order appointing a receiver

By Mark A. Gelowitz on Posted in Jurisdiction: Civil Matters

Does the Bankruptcy and Insolvency Act (“BIA”) grant an appeal as of right to the Court of Appeal from a Superior Court order appointing a receiver? If not, when should leave be granted? These were the questions facing Blair J.A. of the Ontario Court of Appeal in Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, decided on April 29, 2013 . In answering them, he provided welcome clarification to the law in this area.

By way of background, the applicant BDC had successfully applied for an order appointing a receiver over the assets of the respondent Pine Tree. BDC held first security over indebtedness from Pine Tree by way of a mortgage and general security agreements. Pine Tree conceded certain property needed to be sold to satisfy its debts but it opposed the application for appointment of a receiver because it supported the second mortgagee, Rompsen, having control over the sale of property and its sale plan. In opposing the order sought by BDC, Rompsen and Pine Tree argued that the appointment of the receiver would not give effect to the rights of a subsequent mortgagee under s. 22 of the Mortgages Act.

Blair J.A. noted the different provisions concerning appeals under the BIA at play on this appeal:

[13] The portions of s. 193 of the BIA relied upon by Romspen and Pine Tree are the following:

Unless otherwise expressly provided, an appeal lies to the Court of Appeal from any order or decision of a judge of the court in the following cases:

(a) if the point at issue involves future rights;

…

(c) if the property involved in the appeal exceeds in value ten thousand dollars;

…

(e) in any other case by leave of a judge of the Court of Appeal.

[14] Neither (a) nor (c) applies in these circumstances, in my view.  …

[15] “Future rights” are future legal rights, not procedural rights or commercial advantages or disadvantages that may accrue from the order challenged on appeal. They do not include rights that presently exist but that may be exercised in the future:…

[16] Here, Romspen’s legal rights are its right to exercise its power of sale remedy and its right to put the first mortgage in good standing under s. 22 of the Mortgages Act. The first crystallized on the default under the Romspen mortgage, the second on the default under the BDC mortgage. Both rights were therefore triggered before the order of Mesbur J. They were at best rights presently existing but exercisable in the future.

[17] Nor do I accept the argument that the property in the appeal exceeds in value $10,000 for purposes of s. 193(c). As noted by the Manitoba Court of Appeal in Dominion Foundry Co., at para. 7, to allow an appeal as of right in these circumstances would require doing so in almost every case because very few bankruptcy cases would go to appeal where the value of the bankrupt’s property did not exceed that amount. More importantly, though, an order appointing a receiver does not bring into play the value of the property; it simply appoints an officer of the court to preserve and monetize those assets, subject to court approval.

Blair J.A. then turned to the question of whether leave to appeal should be granted. He noted there were two different lines of authority in this respect, that of McLachlin J.A. (as she then was) in Power Consolidated (China) Pulp Inc. v. British Columbia Resources Investment Corp. (1988), 19 C.P.C. (3d) 210 (B.C. C.A.) and that of Goodman J.A. in R.J. Nicol Construction Ltd. (Trustee of) v. Nicol, [1995] O.J. No. 48 (C.A., in Chambers).

Despite noting that Ontario courts had tended to apply the R.J. Nicol test, Blair J.A. noted that precedents in this respect had “evolved” in recent years, leading to “confusion” that he sought to clarify. He thus adopted the following approach:

[29] Beginning with the overriding proposition that the exercise of granting leave to appeal under s. 193(e) is discretionary and must be exercised in a flexible and contextual way, the following are the prevailing considerations in my view. The court will look to whether the proposed appeal,

a) raises an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole, and is one that this Court should therefore consider and address;

b) is prima facie meritorious, and

c) would unduly hinder the progress of the bankruptcy/insolvency proceedings.

He noted that these were close to the Power Consolidated factors. He held that the R.J. Nicol factors were primarily caught by the “prima facie meritorious” consideration and the case law had evolved to establish that merit was not the only consideration in the leave-granting decision.

Applying these factors to the case at bar, Blair J.A. declined to grant leave to appeal. He noted many of the proposed grounds of appeal were attacks on how Mesbur J. had used her discretion and did not have important implications beyond this case. He also had considerable doubt about the merits of the appellants’ proposed interpretation of s. 22 of the Mortgages Act, which grounded much of their appeal. Finally, he noted that there was a need to proceed with the sale of the property in a timely manner.

ALS Society of Essex v. Windsor: Costs in Interlocutory Class Action Appeals

By Mark A. Gelowitz on Posted in Class Actions

Costs awards are only seldom interfered with on appeal. But that is not to say that they are immunized from appellate scrutiny. The Ontario Court of Appeal’s recent decision in Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City), 2013 ONCA 254, released on April 25, 2013, exemplifies as much. It also gives a good statement of the law surrounding costs on appeals generally, and class action appeals in particular.

In this class proceeding, the certification motion judge certified the proceedings as class actions but restricted the size of the class to persons whose claims were not prima facie barred by the Limitations Act, 2002, S.O. 2002, c.24, Sched. B. On the appeal, the Divisional Court held that motion judge erred in limiting the size of the class, holding that this issue could only be determined based on evidence. Many alternative arguments were raised concerning certification but the Divisional Court held that it was more appropriate that they be considered by the motion judge upon reconsideration.

The Divisional Court was of the opinion that success on the appeal was divided – “The plaintiffs were successful in having the decision of the Motion Judge set aside but unsuccessful in obtaining an order certifying the class proceeding” – and thus remitted the issue of costs back to the motion judge.

Weiler J.A. (Winkler C.J.O. and Laskin J.A. concurring) held that the decision not to award costs to the appellants was clearly wrong and should be set aside. She held that success on the appeal was not divided:

[9] The appellants were entirely successful on the issue they appealed. It was the appellants’ success on the limitations issue that opened up the necessity to deal with the additional issues raised by the respondents. Although the Divisional Court could have decided these issues, it exercised its discretion to refer them back to the motion judge. Having exercised its discretion as it did, the Divisional Court refused to give the appellants the ultimate remedy of certification. In these circumstances, the fact that the appellants did not obtain the remedy they sought did not detract from their significant success on the appeal. The respondents are not entitled to rely on “the general rule that where success on appeal is substantially divided…an award of costs of the appeal will not be made”: Lowndes v. Summit Ford Sales Ltd., [2006] O.J. No. 1438 (C.A.), at para. 3.

Weiler J.A. noted the “general rule” that when a re-hearing is ordered, the costs of the appeal should be awarded to the successful party and should not depend on the outcome of the re-hearing. She applied this to this class action context:

[12] Applying this jurisprudence to these class proceedings, it is important to separate the appeal from the forthcoming certification motion. The appeal from the motion judge was a discrete procedural step; its costs should not be treated as merely a component of the costs of the certification motion. The outstanding issues to be determined on the certification motion were not determined on the appellants’ appeal to the Divisional Court. The costs of the appeal and the related motion for leave to appeal are stand-alone costs incurred by a group of litigants who want their day in court.

[13] The delayed recovery of costs until the outcome of the certification motion and potentially of the case itself does not promote access to justice, a goal of the CPA. This court has held that this principle should be taken into account in making awards in class actions: see Sharma v. Timminco Ltd., 2012 ONCA 322, 19 C.P.C. (7th) 271, at para. 5. The respondents were entitled to advance their argument concerning the limitation period on the certification motion. However, it is not generally appropriate that the appellants carry the financial burden of their successful appeal from the motion judge’s decision until the conclusion of the certification motion and potentially until the trial itself.

Weiler J.A. also noted the many different problems with remitting costs of the appeal back to the motion judge:

[14] The Divisional Court further erred in principle in remitting the costs of the appeal to the motion judge whose error necessitated the appeal. The parties could reasonably have expected the court to make an order as to costs, even if it was only an order for costs that depended on the result at the certification hearing or the trial. If the court was going to depart from that expectation and remit the costs of the appeal back to the motion judge, it ought to have given the parties an opportunity to make submissions on this proposed procedure. The appellants assert it did not do so.

[15] In addition, the authority of the Divisional Court to remit the costs of the appeal back to the motion judge is not immediately apparent to me. Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[16] The implication of s. 131(1) is that the court hearing a proceeding or a step in a proceeding will fix those costs. The use of the definite article “the” before the word “court” as opposed to the indefinite article “a” reinforces that implication. This implies that the court hearing the appeal should decide the costs of the appeal. Nothing in the CPA suggests the contrary.

[17] Even assuming that the Divisional Court had the authority to make the order it did, it should not have done so in this case. The Divisional Court was in the best position to make an award as to costs; it had a full appreciation of the factors to be considered in making an award as to costs. Further, as I noted above, the appellants enjoyed significant success on their appeal to the Divisional Court and should have received their costs on the appeal.

Finally, Weiler J.A. distinguished Sharma, where costs were awarded in the cause after success on a limitations issue. She held:

[20] The decision of this court respecting costs illustrates that the general rule – that the costs of an appeal are a separate discrete step and should not be treated as merely a component of the costs of the certification motion – is not an inflexible one. Costs remain in the discretion of the court. However, the court must correctly characterize the success of the parties on an appeal and weigh the importance of the various factors, including access to justice, in the balance. In addition, it is generally not appropriate for the appellate court to ask the motion judge to determine the costs of an appeal from an order made by that same judge. In Sharma, the Court of Appeal fixed the costs of the appeal.

Weiler J.A. thus awarded costs of the appeal to the Divisional Court to the appellant on a partial indemnity basis.

R. v. Avon: Jurisdictional Issues arising from Administrative Decisions in the Criminal Context

By Mark A. Gelowitz on Posted in Jurisdiction: Criminal Matters

In R. v. Avon, 2013 ONCA 249 (www.ontariocourts.ca/decisions/2013/2013ONCA0249.htm), released on April 22, 2013, the Ontario Court of Appeal (Sharpe, Gillese and Watt JJ.A.) considered how the Criminal Proceedings Rules interact with the Judicial Review Procedure Act in the context of challenging administrative decisions made consequent to a criminal conviction. The decision provides welcome clarification on the jurisdiction of the Superior Court, Divisional Court and Court of Appeal.

The applicant had sought an order in Superior Court that his name be removed from the provincial sex offender registry. The Superior Court held that it had jurisdiction pursuant to the Criminal Proceedings Rules, made pursuant to s. 482(1) of the Criminal Code and granting the Superior Court jurisdiction over certiorari applications in criminal matters. The order was denied and the applicant appealed.

The Court of Appeal, however, held the claim should have been brought in the Divisional Court. The Court thus held that the motion judge’s order was without jurisdiction and quashed both the lower decision and the appeal before it. The pertinent parts of the Court’s decision are as follows:

[5]        In our view, the Criminal Proceedings Rules have no application to the circumstances of this case. The remedy sought here is removal of the applicant’s name from a provincial sex offender registry, maintained by a provincial ministry, under a provincial law enacted under provincial legislative authority. The mere fact that the prohibition under s. 161 of the Criminal Code was imposed in criminal proceedings under Part XXVII of the Criminal Code, where it is not expressly included in the expansive definition of “sentence”, does not convert this application to a criminal “proceeding” within s. 482(1) of the Criminal Code or bring it within the purview of the Criminal Proceedings Rules enacted pursuant to that authority.

[6]        In our view, this application should have been made to the Divisional Court under the Judicial Review Procedure Act. It follows that the judge below erred in taking jurisdiction under the Criminal Proceedings Rules. His decision was made without jurisdiction and must be quashed. This appeal is also quashed.

R. v. W.H. – SCC Clarifies Legal Test for Appellate Courts Assessing Reasonableness of Jury Verdict

By Mark A. Gelowitz on Posted in Standards of Appellate Review

In R. v. W.H., released on April 19, 2013, the  Supreme Court of Canada found that the Newfoundland Court of Appeal applied the wrong test in assessing the reasonableness of a jury’s guilty verdict based on the jury’s assessment of witness credibility.

After considering the testimony of both the complainant and the accused, the jury in R. v. W. H. found the accused guilty of sexually assaulting his niece.  The Court of Appeal overturned the conviction on the basis that there were a number of inconsistencies in the complainant’s testimony and previous statements. It concluded that no experienced judge sitting alone would have been able to provide adequate reasons for the guilty verdict.

Cromwell J., writing for a unanimous court, reversed the Court of Appeal’s decision and reinstated the conviction. He distinguished between reviewing the reasonableness of a trial judge’s findings versus those of a jury:

… judges, unlike juries, give reasons for their findings which the appellate court may review and consider as part of its reasonableness analysis. However, this expanded reasonableness review of verdicts entered by trial judges does not apply to reasonableness review of a jury verdict.

A jury’s guilty verdict based on the jury’s assessment of witness credibility is not immune from appellate review for reasonableness. However, the verdict must be treated with great deference – especially in cases where it is based on the jury’s assessment of witness credibility. Cromwell J. outlined the correct (and well established) legal test for assessing the reasonableness of a jury verdict:

The court must ask itself whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury.

The SCC concluded that appellate courts should not attempt to be the 13th juror, since they do not have the advantage of seeing and hearing the evidence as it unfolds.

 

R. v. Trac: New Forfeiture Hearing Can be Ordered if Tied to Revocation of Restraining Order

By Mark A. Gelowitz on Posted in Procedure in Criminal Appeals

R. v. Trac, 2013 ONCA 246 (www.ontariocourts.ca/decisions/2013/2013ONCA0246.htm), released on April 19, 2013, is a lengthy sentencing appeal that considered what constitutes “offence-related property” and examined when forfeiture orders are appropriate. But before reaching the merits of parts of the appeal, Doherty J.A. (Feldman and LaForme JJ.A. concurring) first dealt with an important jurisdictional conundrum. His reasons, recognizing the multiple interests at play in this appeal, provide for flexibility in such situations in the future.

The trial judge had declined to order that any assets be forfeited to Crown as either “proceeds of crime” or “offence-related property”. Relatedly, he revoked the restraining orders in respect of those assets and ordered that they be returned to their owners. The Crown appealed.

Because appeals from forfeiture orders are treated as sentence appeals under the Criminal Code, an appellate court can either dismiss the appeal or make the appropriate order – it cannot order a new hearing (ss. 490.1(3), 673, and 687). However, there is a right of appeal from revoking a restraining order and appellate courts may, among other dispositions, order a new hearing (s. 462.43, 462.44).

As the Crown argued that the trial judge not only misapprehended the law but also failed to consider all the evidence, it argued that a new hearing was necessary. As such, it grounded its appeal as being from the revocation of the restraining order.

Doherty J.A. permitted this. He held:

[53]       Although it appears somewhat artificial to treat this as an appeal from the revocation of the restraining order, the Crown does not gain any unfair advantage by framing the appeal in that way.  Instead, the Crown gains potential access to a new hearing, which, as I understand it, counsel for the respondent accepts is the only appropriate remedy if the Crown can establish a reversible error in law.

[54]       Nothing in the language of s. 462.44 precludes the Crown, on an appeal from an order revoking a restraining order, from raising arguments going to the merits of the Crown’s forfeiture application.  The denial of that application is a necessary precondition to the revocation of the restraining order.  I also agree with the parties’ contention that, on this record, if any of the Crown’s arguments succeed, a new forfeiture hearing would be the proper order.

Marshall v. MMV Financial Inc. – Standard of Review in an Oppression Appeal

By Mark A. Gelowitz on Posted in Standards of Appellate Review

In Marshall v. MMV Financial Inc., released on March 28, 2013, the Ontario Court of Appeal confirmed the high standard of review in an appeal from an application for the statutory oppression remedy.

Justice Pepall, speaking for the court, put it this way:

[12]   The appellant appeals both the July 26, 2012 and February 4, 2013 orders.  At the outset, I would observe that once oppression has been found, a court has a broad discretion to fashion an appropriate remedy and an appellate court has a limited power of review. Therefore, an “appellate court is entitled to interfere only where it is established that the court at first instance has erred in principle or its decision is otherwise unjust.”  See Bank Leu Ag v. Gaming Lottery Corp. 2003 CanLII 28360 (ON CA), (2003), 175 O.A.C. 143 at para. 74, citing Sidaplex-Plastic Supplier Inc. v. Elta Group Inc. (1998), 12 D.L.R. (4th) 367 (Ont. C.A.) at para. 4.

Cornish v. Ontario Securities Commission: the standard of appellate review of Commission decisions

By Mark A. Gelowitz on Posted in Standards of Appellate Review

The Ontario Divisional Court has once again confirmed the very high standard of appellate review of decisions of the Ontario Securities Commission.

In Cornish v. Ontario Securities Commission, decided on March 19, 2013, the Divisional Court dismissed appeals from an OSC decision relating to the continuous disclosure obligations of Coventree Inc. A crucial issue in the case was the interpretation of the words “material change” as those words are used in the Ontario Securities Act. The appellants argued for a correctness standard of review, while the OSC argued for reasonableness.

After reviewing a number of the leading authorities on the subject (Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557 at para. 72; Committee for the Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission), [2001] 2 S.C.R. 132 at para. 49; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, [2011] 3 S.C.R. 654 at para. 34; and Rowan v Ontario Securities Commission, 2012 ONCA 208 at para 79), Justice Ducharme, speaking for the court, stated:

[34] It is beyond question that the interpretation of material change under the Securities Act and the Commission’s discretionary application of its public interest jurisdiction under s. 127 of the Securities Act are issues falling within the specialized expertise of the Commission. Thus, as the foregoing authorities make clear, the appropriate standard of review for the issues raised by the appellants is reasonableness.

[35] While the Supreme Court of Canada applied a correctness standard in Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, it did so in a context where both the courts and the Copyright Board were engaged in interpreting copyright legislation at first instance. The Court described this as an “unusual statutory scheme”. In contrast, in the securities context, the courts have long recognized the special expertise of securities commissions in the regulation of securities markets.

[36] As for the allegation of a denial of procedural fairness, the Court does not apply a standard of review. The question is whether there was a denial of procedural fairness.

Interestingly, the Divisional Court did not refer to its own decision in Sears Holdings Corporation v. Ontario Securities Commission, which is perhaps the high-water mark in deference to the decisions of a securities commission. In that case, the court held that: “The standard of review of reasonableness encompasses ‘the right to be wrong.’”