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The Conduct of an Appeal

Recent Developments in Canadian Appellate Law and Practice

Weir’s Construction Limited v Warford: Newfoundland Court of Appeal applies the new Court of Appeal Rules regulating interventions

Posted in Intervention on Appeal

In Weir’s Construction Limited v Warford, the Newfoundland Court of Appeal considered an application for intervenor status under Rule 38 of the new Court of Appeal Rules, NLR 38/16. Rule 38 of the new rules provides:

38. (1) A person who did not participate in the court appealed from may apply to be added as an intervenor for purposes of the appeal.
(2) The application shall state the intervenor’s interest in the appeal, explain the failure to apply to intervene in the court appealed from, and indicate the position the intervenor intends to take on the appeal.
(3) In addition to the factors set out in subsection (2), the Court may consider any relevant factors, including whether intervention would delay or prejudice adjudication of the rights of the parties and whether the record of the court appealed from is sufficient for purposes of the intervention.
(4) The Court may define or limit the scope of participation by an intervenor in an appeal.

The Attorney General of Newfoundland and Labrador applied for intervenor status in an appeal dealing with the interpretation of ss. 44 and 44.1 of the Workplace Health, Safety and Compensation Commission Act.

In interpreting the new rule, the Court highlighted that Rule 38 applies only in the Court of Appeal, in contrast to the previous rule which applied to both the Court of Appeal and the Trial Division. The Court found that Rule 38 can therefore be interpreted and applied in a manner that is suitable to appellate proceedings, recognizing the fact that the proposed intervenor did not participate in the hearing below.

The Court held that there are two circumstances where intervention may be appropriate based on the applicant’s “interest” in the appeal: (i) where the applicant’s specific legal interests will be affected by the decision on the appeal; and (ii) appeals with broader public interest considerations.
If an applicant establishes an “interest” in the appeal, Rules 38(2) and (3) require the court to consider a number of other factors, including: (i) the explanation for failing to apply to intervene in the court appealed from; (ii) the position the applicant intends to take on appeal; (iii) whether the intervention will delay or prejudice the adjudication of the rights of the parties on appeal; and (iv) whether the record of the court appealed from is sufficient for the purposes of the intervention. None of these factors alone is determinative. Each factor, and any other relevant factors, should be balanced to determine whether an intervention is appropriate.

After balancing all of the above factors, the Court denied the Attorney General’s application for intervener status. The Attorney General had asserted that a ruling on the interpretation of ss. 44 and 44.1 would likely determine the results in other litigation in which the province is a party. The Court held that an interest that is purely regarding the precedential value of a decision is not sufficient for intervention. There was a real risk that granting intervener status on this basis would result in the other parties in the province’s other litigation also seeking intervener status to oppose the Attorney General’s position. Moreover, the Attorney General’s explanation for not seeking intervener status earlier was “wanting”, and the intervention would have delayed the appeal.

Ellis v Pelley Estate: Newfoundland Court of Appeal clarifies the test for reinstatement under the new Court of Appeal Rules

Posted in Procedure in Civil Appeals

In Ellis v Pelley Estate, the Newfoundland Court of Appeal clarified the test for reinstatement of an appeal under the new Court of Appeal Rules, NLR 38/16. The new rules came into force on October 17, 2016. Rule 17(9) of the new rules provides that an appeal may be reinstated “upon terms the Court considers just”. Under the former rules, a civil appeal could be reinstated where refusal to do so would “create an injustice”. The test for reinstatement involved balancing the following factors, set out in Fahey v. The Law Society of Newfoundland:

(i)      whether the appeal discloses an arguable case,
(ii)     whether the applicant had a bona fide intention to proceed with his or her appeal,
(iii)   whether the applicant has a reasonable excuse for failing to proceed with his or her appeal prior to the deemed abandonment,
(iv)   the timeliness of the application of reinstatement, and
(v)     the presence or absence of special circumstances that might justify or deny reinstatement.

In Ellis, the Court of Appeal clarified that the Fahey factors continue to provide assistance in determining whether reinstatement should be ordered under the new rules. The Court ultimately determined that there was no arguable basis for the appeal and, therefore, it would not have been just to reinstate the appeal. Since Ellis, the Court has continued the apply the Fahey factors. See, for example, Winters v. Nor-Lab Limited and George v The Royal Newfoundland Constabulary Public Complaints Commission.

Chuang and Meridian: Court of Appeal for Ontario Dismisses Motions to Re-Open Appeals

Posted in Hearing New Issues on Appeal, Procedure: Ontario

In Chuang v Toyota Canada Inc. and Meridian Credit Union Limited v Baig, the Court of Appeal for Ontario dismissed motions to re-open appeals brought by unsuccessful appellants. In both decisions, the Court reaffirmed that the power to re-open an appeal “will be exercised sparingly and only where it is clearly in the interests of justice”. Chuang and Meridian demonstrate that a party seeking to re-open an appeal cannot satisfy that stringent threshold merely by advancing a new legal theory or pointing to alleged errors in a Court’s reasons.

Chuang

The appellants appealed from a trial decision finding that the respondent had unreasonably terminated a contract with the appellants, but did not have to pay any damages because of an exclusion clause in the contract. The appeal was dismissed.

After hiring new counsel, the appellants brought a motion to re-open the appeal so that they could advance a new legal theory. They wanted to argue that the respondent had repudiated the contract, and submitted that a proper legal analysis in light of this new theory would lead to a different result.

The motion was dismissed. The appellants had not argued repudiation at trial or on their appeal. The Court noted that a party should not generally be allowed to raise a new legal argument at the appellate stage, and concluded that it would be unfair to permit the appellants to re-open their appeal to advance this new legal issue after 10 years of litigation.

Meridian

The appellant was found liable for fraudulent misrepresentation. His appeal was dismissed, and he then applied for leave to appeal to the Supreme Court.

However, instead of pursuing his leave application at the Supreme Court, the appellant brought a motion asking the Court of Appeal to re-open his appeal. According to the appellant, the Court’s decision “disclosed a misapprehension or misapplication of a material piece of evidence.”

To begin with, the Court observed that the appellant’s reliance on rule 59.06 of Ontario’s Rules of Civil Procedure was misplaced. All of the grounds for re-opening an appeal in that rule concerned orders, whereas the appellant was challenging the Court’s reasons. However, the Court also stated that it could reconsider its own decision where no order has been taken out and entered.

The appellant’s motion was dismissed. The Court noted that the arguments raised by the appellant had been considered and rejected, and concluded that a losing party’s disagreement with the Court’s reasons was not the kind of “rare circumstance” that would justify re-opening an appeal. The Court also stated that the appellant’s application for leave to appeal to the Supreme Court was the “the normal and proper recourse for a party who wishes to challenge” a Court of Appeal’s reasons.

 

Ontario Court of Appeal – New Civil and Criminal Practice Directions

Posted in Procedure in Civil Appeals, Procedure: Ontario

On March 1, 2017, the Court of Appeal for Ontario adopted a new Practice Directions Concerning Civil and Criminal Appeals at the Court of Appeal. This Practice Direction revoked and replaced the Court of Appeal’s previously issued Practice Directions.

The new Civil Practice Direction can be found at this link:

Civil Practice Direction

The new Criminal Practice Direction can be found at this link:

Criminal Practice Direction

What follows is an extract from a summary of the new Civil Practice Direction prepared by the Court of Appeal.

  • Summary Judgment Appeals

The Court of Appeal’s new Civil Practice Direction eliminates the special provisions for summary judgment appeals that appeared in the former practice direction, requiring that summary judgment appeals be automatically expedited and limiting the default oral argument in such appeals to one hour in total.

Under the new Practice Direction, summary judgment appeals are not automatically expedited. In addition, there is no default time assignment for summary judgment appeals. The court will assign time for summary judgment appeals after reviewing the time estimate provided in the appellant’s factum (see s. 12.2 of the Practice Direction).

  • Compendiums

The new Practice Direction emphasizes that parties must include in their compendiums all relevant excerpts of the transcript of evidence and all relevant exhibits. This requirement is essential because the judges of the Court of Appeal do not have access at appeal hearings to the single paper copy of the transcript that is filed in accordance with rule 61.09(3)(b)(iii) of the Rules of Civil Procedure. Nor do the judges have access at appeal hearings to the single paper copy of the exhibit book filed pursuant to rule 61.09(3)(b)(ii). It is therefore critical that the compendiums contain all transcript references and exhibits that the parties intend to rely on or refer to in argument.

  • Miscellaneous

Other new directions concerning civil motions and appeals include:

  • Directions on sending correspondence to the Court of Appeal in relation to a court file, including the requirement to copy all parties to the proceeding on any correspondence and specific restrictions on what correspondence may be sent to the Court of Appeal by email: see s. 4 of the Practice Direction;
  • Directions on the considerations related to the Jurisdictional Statement in the Notice of Appeal: see s. 6.3 of the Practice Direction;
  • Directions on the procedures for bringing and responding to motions in the Court of Appeal, including motions before a single judge in chambers and motions before a panel of three judges: see s. 7 of the Practice Direction;
  • Directions on the time lines that apply to motions for leave to file further evidence on an appeal pursuant to 134(4)(b) of the Courts of Justice Act: see s. 7.2.6 of the Practice Direction;
  • Directions on the use of the court’s power to stay or dismiss a motion under rule 2.1.02 of the Rules of Civil Procedure: see ss. 7.4 and 19 of the Practice Direction;
  • Information about the Court of Appeal’s Pre-Hearing Settlement Conference program for family appeals and civil appeals: see ss. 9 and 10 of the Practice Direction;
  • Directions on the procedures for requesting the court to reconsider a prior precedential decision of the Court of Appeal for Ontario: see s. 13 of the Practice Direction;
  • Directions on the procedures for abandoning a motion or appeal/cross-appeal: see ss. 7.5 and 14 of the Practice Direction;
  • Directions on the procedures to follow when an appeal/cross-appeal is settled: see s. 14 of the Practice Direction;
  • Directions on courtroom attire for counsel who are pregnant: see s. 15.2 of the Practice Direction;
  • Directions on the use of electronic devices in courtrooms: see s. 15.3 of the Practice Direction; and
  • Directions on the process for ordering digital audio recordings of hearings in the Court of Appeal: see s. 17 of the Practice Direction.

Accompanying Guidelines

  1. Guidelines for Filing Electronic Documents at the Court of Appeal

The Court will adopt Guidelines for Filing Electronic Documents at the Court of Appeal for Ontario, effective 1 March 2017. The Guidelines will replace the Court’s existing guidelines on Electronic Filing (April 5, 2000). The Guidelines set out the type of documents that may be delivered to the Court of Appeal through its COA.E-File@ontario.ca address. The Guidelines also specify the permissible size of electronic documents that may be sent to this address and the content of the email message transmitting documents to this address (e.g., the subject line should include the court file number and the nature of the attachment).

  1. Reference Guide for Citation Practices at the Court of Appeal

The Court is pleased to provide a Reference Guide for Citation Practices at the Court of Appeal for Ontario. The reference guide is for information purposes only in the factum-writing process.

  1. List of Frequently Cited Civil Authorities

The Court is adopting a List of Frequently Cited Civil Authorities. Authorities on this list do not need to be included in books of authorities. When a party’s factum refers to an authority on the List of Frequently Cited Civil Authorities, the book of authorities should only include the headnote and particular passage(s) from the authority being relied on.

 

Avery v. Pointes Protection Association: Standard of Review on Test for Leave to Appeal to Divisional Court is Same as Standard Applied if Leave is Granted

Posted in Appeals with Leave

In Avery v. Pointes Protection Association, the Ontario Divisional Court held that when reviewing an application for leave to appeal, the Court should use the same standard of review when applying the test for leave to appeal as the standard that would be used if leave is granted.

Background

The applicant developers sought leave to appeal a decision by the Ontario Municipal Board (the “Board”) regarding a proposed residential development called “Pointe Estates” in Sault Ste. Marie, Ontario. The residential development was opposed by a group called Pointes Protection Association (the “PPA”). The Board dismissed the developers’ appeal from a decision of the Sault Ste. Marie City Council, in which the Council denied the developers’ request for rezoning and draft subdivision approval, among other things.  The developers allege the Board committed a number of errors, such as misinterpreting the meaning of terms used in policy statements issued under the Planning Act.

The Issues Raised on Appeal

Rule 61.03(4) of the Rules of Civil Procedure provides that the moving party should set out the specific questions that the Divisional Court should answer if leave to appeal is granted. In the notice of motion, the developers listed 34 alleged errors of law on the part of the Board.

Justice Ellies, writing for the Divisional Court, stated that this “shotgun approach” in an application for leave to appeal serves to dilute, not distill, the merits of the appeal. In an application for leave, the Court must consider each and every alleged error in order to determine whether leave should be granted. Justice Ellies noted that where the number of errors alleged approaches the number alleged in this case, the resulting delay weighs heavily on the parties and on the court.

The Test for Leave to Appeal

According to s. 96(1) of the Ontario Municipal Board Act, an appeal lies to the Divisional Court, with leave, on a question of law. In addition to the requirement that the issue involve a question of law, the jurisprudence developed under this section also imposes the following conditions:

  • that there is reason to doubt the correctness of the decision on that issue; and
  • that the point of law is of sufficient importance to merit the attention of the Divisional Court.

This test for leave to appeal in this section is similar to the test in Rule 62.02(4)(b) for leave to appeal to the Divisional Court.

With respect to the first part of the test, namely that there be some reason to doubt the correctness of the decision, the parties disagreed how to phrase the first part of the test for leave to appeal. The developers argued that there need only be “good reason” to doubt the correctness of the Board’s decision whereas the PPA argued that the test is whether the Board’s decision is “open to substantial doubt.”

Justice Ellies noted that the difference between the two parties is tied to the question of what standard of review applies in an application for leave to appeal. The developers argued that the standard of review on a leave application is the less deferential standard of correctness, even where, if leave was granted, the standard on the appeal would be the more deferential standard of reasonableness.

In previous cases, the courts have described the test in a number of different ways. Some courts have said that the decision must be open to “substantial doubt” whereas others have used a “very serious debate,” “good reason to doubt” or “some reason to doubt” description of the test. According to Justice Ellies, the court’s choice of words used in the test depends on the court’s view of the degree of deference that should be shown to the decision.

Justice Ellies held that the standard of review on an application for leave to appeal should be the same standard that would be applied if leave is granted. Although applying a less deferential standard would have little impact where a court denies leave, it may have a significant impact where a court grants leave on a question of law that will attract deference on the appeal. According to Justice Ellies, it makes no sense to grant leave to appeal by applying a less deferential standard where the appeal is unlikely to succeed once a more deferential standard is applied. Such an approach would only add to the already overburdened justice system.

In this case, Justice Ellies found that, if leave was granted, the Board’s decision on a question of law concerning its own or related statutes would be reviewed on a standard of reasonableness. Therefore the standard of reasonableness should be applied to the first part of the test for leave to appeal. Once the degree of deference owed to a decision is made explicit, Justice Ellies explained that there is no reason to be concerned with the different wording used to describe the test (although he chose to use the “good reason to doubt” phrasing of the test).

After outlining the test, Justice Ellies reviewed the alleged errors of the Board raised by the developers and concluded that none of the many issues raised met the onerous test for leave to appeal. The Court therefore dismissed the application.

R. v Shafia: Court of Appeal Applies Stringent Standard for Admitting Fresh Evidence Challenging Jurisdiction of Trial Court

Posted in Admitting Fresh Evidence, Jurisdiction: Criminal Matters

In R v Shafia, the Court of Appeal for Ontario refused to admit evidence proffered, for the first time on appeal, to establish that the trial court lacked jurisdiction to try an appellant because he was a minor at the time of the alleged offence. Watt J.A., on behalf of a unanimous Court, referred to the “strong onus imposed upon an accused to advance jurisdictional challenges at the outset of trial” and “the exceptional authority to receive fresh evidence on appeal and consider issues not raised at trial” to conclude that an appellate court must apply a stringent standard when asked to admit evidence challenging the jurisdiction of a trial court.

Background

Hamed Shafia, along with his parents, was charged with and convicted of four counts of first degree murder. One of Hamed’s grounds on appeal was that, after his conviction, his father discovered that Hamed was born on December 31, 1991, and not 1990 as his family had believed and represented for years. As a result, Hamed claimed he was 17 years old and a “young person” under the Youth Criminal Justice Act at the time of the alleged murders. Under section 14(1) of the YCJA, a “young person” can only be tried in the youth justice court, and Hamed had been tried in an adult court with his parents.  

Hamed asked the Court of Appeal to admit three pieces of fresh evidence that, according to him, showed that he was born in 1991: a tazkira (an identity document issued by the Afghan government), a Census General Presidency form translating the identity page of the tazkira, and a Certificate of Live Birth issued by the Afghan Ministry of Public Health. Hamed’s father also provided an affidavit explaining how an employee of his in Afghanistan obtained the documents and discovered Hamed’s true age after he was convicted. The Crown strenuously opposed the fresh evidence application. It attacked the reliability of the documents and the plausibility of the explanation offered by Hamed’s father in his affidavit.

Principles Governing Admissibility of Fresh Evidence on Appeal

As a starting point, Watt J.A. observed that the role of appellate courts is to review decisions made by trial courts, and “[i]nherent in the appellate function is a requirement that issues be raised and determined at trial before they will be considered on appeal.” In particular, he observed, there is a strong onus on an accused to raise jurisdictional challenges at the outset of trial.

However, Watt J.A. also noted that these rules are not unyielding. Section 683(1)(d) of the Criminal Code permits an appellate court to receive fresh evidence if it is “in the interests of justice” to do so. Watt J.A. made the following observations about the test applied under that section:

[175] The “interests of justice” test requires an appellate court to make a context-sensitive inquiry into all the circumstances, including the grounds of appeal advanced, the material tendered for admission and the remedies sought.

[176] The mere fact that the evidence proposed for admission has some probative value on a material issue does not mandate its receipt by an appellate court. The court must engage in a qualitative assessment of the potential value of the evidence proposed for admission. This assessment demands a careful evaluation of the proffered evidence and the credibility of its source. This evaluation does not involve a determination of the ultimate reliability of the evidence and the credibility of its author, for that is the role of the trier of fact in another forum. The evaluation takes place in the context of determining whether the evidence is sufficiently cogent to warrant its admission on appeal having regard to the purpose for which the evidence is tendered.

[177] To some extent at least, the test applied to determine whether evidence tendered for admission on appeal will be received is a function of the basis upon which the verdict is impeached. For example, where an appellant proffers fresh evidence to challenge a factual finding at trial, the proposed evidence must itself generally be relevant, material and admissible on the controverted issue. On the other hand, where the challenge is to the fairness of the adjudicative process followed to establish guilt, say that trial counsel provided ineffective assistance, the evidence tendered for admission on appeal would generally need to establish the problem being asserted and whether the problem resulted in a miscarriage of justice. [Citations omitted.]

Application of Principles

Watt J.A. observed that the issue for which Hamed was tendering fresh evidence – the absence of trial jurisdiction – did not settle into either of the categories identified above. However, given the fact in issue (i.e., Hamed’s age) related to the trial court’s jurisdiction and should have been raised at the outset of trial, and given concerns about the credibility and cogency of the evidence, the Court was required to apply serious scrutiny before admitting the proposed fresh evidence.

The fresh evidence application was dismissed. Watt J.A. offered a number of reasons for that holding: the evidence was not sufficiently compelling given the exceptional nature of jurisdictional challenges advanced for the first time on appeal; as the proposed evidence did not challenge either a finding of fact essential for conviction or trial fairness, the Court was required to place greater weight on protecting the integrity of the trial system; the principal piece of evidence, the tazkira, was inadmissible hearsay and was inherently suspect; Hamed’s family had consistently stated that Hamed was born in 1990 on a number of occasions; the new date of birth advanced on appeal would render the birthdates of four of the seven Shafia children inaccurate; and, finally, the only accurate source of information about Hamed’s date of birth, his mother, had not filed an affidavit in support of his application.

Skunk v Ketash: Order Dismissing Summary Judgment Motion is Generally Interlocutory

Posted in Interlocutory v Final Orders

In Skunk v Ketash, the Court of Appeal for Ontario found that an order dismissing a summary judgment motion was interlocutory. Hoy A.C.J.O., on behalf of a unanimous Court, also provided guidance on when an order dismissing a summary judgment motion may be considered a final, as opposed to an interlocutory, order.

Background

Christopher Skunk was injured while he was a passenger in a car owned by his wife. He sued Jevco Insurance Company, the car’s insurer, claiming recovery on the basis that he was injured by an “uninsured vehicle” and, therefore, entitled to coverage under Jevco’s policy. Jevco brought a motion for summary judgment dismissing Mr. Skunk’s claim; it argued that Mr. Skunk’s injuries were not covered under the policy because he was injured while he was a passenger in his wife’s car.

The motion judge dismissed Jevco’s motion. Jevco appealed that order to the Court of Appeal. Mr. Skunk argued that the order was an interlocutory one that had to be appealed, with leave, to the Divisional Court; therefore, he argued, the appeal had to be quashed.

Court of Appeal’s Decision

Hoy A.C.J.O. noted that “[r]egrettably, the question of whether an order dismissing a summary judgment motion is a final order is not a novel one.” To provide greater clarity, she summarized the Court’s jurisprudence on this issue:

  • The general rule is that an order dismissing a motion for summary judgment is an interlocutory, and not a final, order.
  • If a party argues that the motion judge made a final, binding determination of law that disposes of the substantive rights of one of the parties (“Binding Legal Determination”) in dismissing the summary judgment motion, then the Court of Appeal will consider whether the motion judge’s order invokes r. 20.04(4) and references the legal determination that the party argues is a Binding Legal Determination.
  • If the order does not invoke r. 20.04(4) and reference the legal determination that the party argues is a Binding Legal Determination, the Court of Appeal will usually consider whether the precise scope of the point of law determined by the motion judge is clear and whether it is clear that the motion judge intended that her determination be binding on the parties at trial.

The motion judge had not referenced r. 20.04(4) when dismissing Jevco’s summary judgment motion. In addition, based on a review of his reasons, Hoy A.C.J.O. concluded that it was not clear that the motion judge intended his determination to be binding on the parties at trial. Therefore, the motion judge’s order was interlocutory and Jevco’s appeal was quashed.

Enerzone Inc. v. Ontario (Revenue): Order refusing to dismiss an appeal without disposing of substantive issues was interlocutory

Posted in Interlocutory v Final Orders

In Enerzone Inc. v. Ontario (Revenue), the Ontario Court of Appeal quashed the Minister’s appeal on the basis that the motion judge’s order was interlocutory. The Minister had brought a motion in the Superior Court to dismiss Enerzone’s tax appeal on the grounds that the appeal was outside the scope of appeals allowed under the Retail Sales Tax Act, R.S.O. 1990.  The motion judge dismissed the Minister’s motion and the Minister appealed.

The key question for the Court of Appeal was whether the motion judge’s order dismissing the Minister’s motion was final or interlocutory. The Court noted that if the motion judge had decided the scope of the appeal by precluding the Minister from raising arguments as to the scope on the appeal itself, the order would be final. However, if the motion judge simply determined that the proper scope of the appeal was a matter to be argued and determined on the appeal itself, the order would be interlocutory.

The Court determined the order was interlocutory and quashed the appeal. The motion judge’s order merely dismissed the motion. It did not “purport to decide anything about the scope of the appeal”. While the reasons were somewhat ambiguous, read in their entirety together with the terms of the order itself, it was clear that the order did not preclude the Minister from raising arguments as to the scope of the appeal at the appeal itself. Therefore, the appeal was interlocutory and the Court of Appeal had no jurisdiction.

The Court also observed that the determination of whether an order is interlocutory or final is an “ongoing problem for this court.” To alleviate the problem, the Court urged motion judges to use language that clearly states whether or not the order disposes of a substantive issue and urged counsel to pay close attention to the language of an order.

Significant Amendments to the Rules of the Supreme Court of Canada

Posted in Procedure: SCC

On January 1, 2017, the Rules Amending the Rules of the Supreme Court of Canada, SOR/2016-271 (the “Amendments”) and the Guidelines for Preparing Documents to be Filed with the Supreme Court of Canada (Print and Electronic) (the “Guidelines”) came into force. The Amendments and Guidelines will apply to all cases as of January 1, 2017.

The Amendments and Guidelines include a number of substantial changes. Some of the key changes are new deadlines for serving and filing appeal documents, a new process for providing notice when an appeal raises a constitutional issue, new rules for electronic service, new requirements for factums and books of authorities, a significant reduction in the number of copies required for parts of the record and new technical requirements for document preparation. The Amendments and Guidelines include, but are not limited to, the following changes:

 (1) New deadlines for serving and filing appeal documents

The deadline for filing an appellant’s factum was reduced from twelve to eight weeks (R. 35(1)). In all cases, the new deadline runs from the date the notice of appeal was filed. The deadline for filing an intervener’s factum was reduced from eight to six weeks (R. 37).

(2) Notice where an appeal raises a constitutional issue

When an appeal raises a constitutional issue, the parties must follow the new procedures set out in Rules 25 and 33 instead of bringing a motion to state a constructional question after leave is granted. For appeals by leave, constitutional issues are to be identified and formulated in the application for leave to appeal (R. 25(1)(c)(ii)). For appeals as of right, the appellant or respondent must give notice of a constitutional issue by filing Form 33B “Notice of a Constitutional Question” (R. 33(2)). Form 33B has been amended to reflect that the parties assert that the appeal raises a constitutional issue as opposed to an order of the Court.

 (3) Electronic service

All documents, except for originating documents, can now be served by e-mail without prior consent (R. 20(1)(d.1)). A party served with an electronic copy of a document that must be bound (i.e. a factum) may request a printed version in which case the printed version must be delivered no later than one week after receiving the request (R. 20(2)).

(4) Changes to the factum and book of authorities

Part VI of the factum, i.e. a table alphabetically listing all authorities replied upon, must now include hyperlinks to the electronic version of all cases and statutes where available electronically (R. 42(2.1)). Further, the books of authorities is now only required to include authorities that were not available electronically (R. 44).

(5) Reduction in the number of copies of documents to be filed

The amendments also significantly reduced the number of print copies required for certain appeal documents. In particular, the appellant must file 20 copies of Part I of the appellant’s record (no change) and 2 copies of Parts II to V (Part II reduced from 20 copies; Parts III to V reduced from 11 copies) (R. 35). The respondent must file 2 copies of the respondent’s record (reduced from 11 copies) (R. 36). Moreover, the parties must file 2 copies of the book of authorities (reduced from 11 copies) (RR. 35(1)(b)(iv) and 36(2)(iii)). The Guidelines include a chart titled “Specific Requirements for Documents” which summarizes the filing requirements for all appeal documents.

(6) Technical requirements for document preparation

It is important to consult the Guidelines for documents filed after January 1, 2017. The Guidelines include several technical changes for document preparation, for example:

  • Footnotes: footnotes must be in 12-point font and footnotes containing an explanation or a comment must be one and one half lines apart instead of single spaced.
  • Filing of electronic appeal and application for leave to appeal documents: printed and electronic versions must be filed by the deadline set out in the Rules, even if they are filed separately.

The Supreme Court’s “Guide to the 2017 Amendments to the Rules of the Supreme Court of Canada” which provides a plain language explanation of the changes in the Amendments and Guidelines can be found here.

Kukemueller v Ontario (Community Safety and Correctional Services): Deciding a Moot Appeal to Clarify the Law

Posted in Discretion Not to Hear Moot Appeals

In Kukemueller v Ontario (Community Safety and Correctional Services), 2016 ONCA 451, the Court of Appeal for Ontario provided brief reasons allowing an appeal even though it had become moot. The Court stated that it was addressing the merits of the appeal, “even though the action has been discontinued, in order to clarify the law.”

On the merits, the Court held that s. 8 of the Ministry of the Attorney General Act gives individual Crown Attorneys immunity from actions for damages alleging prosecutorial misconduct, and that the motion judge relied on cases predating s. 8’s enactment when coming to the opposite conclusion.