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The Conduct of an Appeal

Recent Developments in Canadian Appellate Law and Practice

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.


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.


R. v. Pahl: Determining a Sentence’s Fitness on Appeal

Posted in British Columbia, Sentence Appeals

In a sentencing appeal, the British Columbia Court of Appeal in R v. Pahl split on the issue of how to properly determine whether a sentence was fit in the context of disputes over the admissibility of evidence at the sentencing level. The majority found that, as an appellate court cannot return a matter to the trial-level for re-sentencing, a judge (other than the sentencing judge) should be appointed as “special commissioner” and should make further necessary findings of fact and then return the matter to the appellate court to make the final sentencing decision. The dissent would not have remitted the matter to a special commissioner and would have instead decided the appeal on the basis of the admissible evidence.


The respondent had used his position as an airport screener at Vancouver International Airport to bypass security checks and help deliver large quantities of illegal drugs to a courier who was about to smuggle those drugs into the United States. The respondent pleaded guilty to a charge of possessing drugs for the purpose of exportation.

The respondent’s explanation for why he committed the offence was that he was coerced by an unnamed individual. Although the respondent did not testify at the sentencing hearing, his explanation was advanced via a psychologist’s report, based on information provided to the psychologist by the respondent. While the respondent’s counsel submitted that the statements made to an undercover police officer – where the respondent said that he had smuggled drugs on four previous occasions – were mere “bravado”, the Crown submitted that this should be an aggravating factor.

The sentencing judge accepted the respondent’s explanation that he was coerced into committing the offence, and he was correspondingly sentenced to eight years’ imprisonment. The Crown sought to appeal the sentence, submitting that the sentencing judge erred in principle in accepting the respondent’s explanation.

Majority: Appoint a Special Commissioner

Writing for the majority, Justice Frankel noted that, when the evidentiary disputes arose regarding the respondent’s explanation for committing the offence, the sentencing judge should have held an evidentiary hearing:

[53]        In my view, the sentencing judge erred in principle in accepting Mr. Pahl’s explanation for why he committed the offence as there was no admissible evidence to support that explanation.  When the factual disputes arose at sentencing, an evidentiary hearing should have been held; sometimes referred to as a “Gardiner hearing”…

While Justice Frankel found that the Court of Appeal could not send the matter back for re-sentencing, he noted that a number of other tools were available at the court’s disposal, including the appointment of a special commissioner to determine the disputed facts and report back:

[86]        That it is not open to send a matter back for re-sentencing does not mean that an appellate court cannot avail itself of the trial court’s fact-finding expertise to obtain factual information needed to properly decide a sentence appeal.  Section 687(1) of the Criminal Code permits an appellate court to consider “such evidence, if any, as it thinks fit to require or to receive”.  More importantly, s. 683 provides a number of mechanisms appellate courts may use to obtain needed information.

[87]        Appellate courts have used s. 683 to have trial judges conduct evidentiary hearings and report back.  For example, in Debaat at 230, this Court appointed a Provincial Court judge to report back on Mr. Debaat’s ability to pay a restitution order.  See also:  R. v. Stettner, [1984] S.J. No. 372 at para. 4 (C.A.); Englehart at paras. 12-13.

[88]        In my view, the appointment of a Provincial Court judge under s. 683(1)(e) as a special commissioner is the fairest and most effective way to have the disputed facts in this case determined.  The rules of evidence and burdens of proof that apply to a Gardiner hearing will govern that hearing.

Dissent: Decide on the Basis of Admissible Evidence

Writing in dissent, Justice Garson noted that the remedy proposed by the majority had never been used before, and that the appropriate remedy would be for the Court of Appeal to determine the sentence’s fitness based on the admissible evidence before the court:

[93]        I have found no previous case in which s. 683(1)(e) was employed in the fashion proposed by my colleague: that is, remitting an evidentiary question to the sentencing judge after a determination that the judge relied on inadmissible evidence in imposing the sentence at issue.

[94]        Generally speaking, if a sentencing judge proceeds to sentence on the basis of inadmissible facts, the appellate court will, if the sentence is unfit, impose a fit sentence on the basis of the established facts: R. v. Melvin, [1995] N.B.J. No. 297, 164 N.B.R. (2d) 158 (C.A.); R. v. Verner, [1982] N.B.J. No. 244, 41 N.B.R. (2d) 95 (C.A.); R. v. Rowe, 2008 NLCA 3 (CanLII); R. v. Murphy, 2011 NLCA 16 (CanLII); R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252, 72 O.R. (3d) 1 (C.A.); R. v. Craig, 2003 CanLII 12866 (ON CA), [2003] O.J. No. 3263, 177 C.C.C. (3d) 321 (C.A.); R. v. Tran, 2007 BCCA 405 (CanLII).

Harle v. 101090442 Saskatchewan Ltd: Clarifying the Scope of a Trial Court’s Jurisdiction on Remitted Issues

Posted in Admitting Fresh Evidence

The Saskatchewan Court of Appeal in Harle v. 101090442 Saskatchewan Ltd. clarified the scope of the trial court’s jurisdiction in hearing new evidence on issues remitted following appeal: provided that the evidence does not pertain to facts already accepted by the courts, trial courts have the jurisdiction to hear fresh evidence on issues remitted from appellate courts.

Harle involved an agreement for the sale of a farm that had been cancelled by the vendors. While the purchaser was successful at trial for specific performance of the sale agreement, the vendors successfully appealed the decision and had the order for specific performance set aside. The matter was then remitted to the trial judge to assess damages owing to the purchaser as a result of the vendors’ breach.

At issue in the second appeal was whether the trial judge erred in permitting the purchaser to resile from the position it took at the initial trial and whether new evidence could be adduced.

Underlying the Court of Appeal’s analysis in Harle is the interplay between res judicata and stare decisis.

The Court of Appeal stated:

[21]           That is, when this Court remits a matter to a trial court, it is not for the trial court to question this Court’s decision; it is the duty of the trial court to give full effect to that decision, whatever the trial court’s views may be as to the intrinsic wisdom of it. This is so because stare decisis requires a trial court to follow the law as interpreted by its coordinate appellate court. Therefore, when a matter is remitted for determination, the trial court must follow the directions of the appellate court in making that determination. Of course, the trial court may look to the appellate court’s reasons and to the original trial decision to determine the scope of the matter remitted. But, to the extent the appellate court’s reasons alter the trial court’s findings and its initial decision, the appellate court’s findings and decision must be followed.

The Court of Appeal ultimately allowed the appeal, ruling that the purchaser could resile in part from its earlier position and that new evidence could be adduced on the issues remitted to the trial judge:

[45]           For these reasons, I would allow the appeal and vary the impugned rulings. I would set aside the ruling permitting [the purchaser] to resile from its concession that damages ought to be assessed on the basis of the difference in land values. However, I would not interfere with the trial judge’s exercise of his discretion to permit [the purchaser] to resile from its position that the date of trial is the appropriate date for assessing damages. Moreover, I would not interfere with his decision to permit [the purchaser] to reopen the trial to adduce new evidence on the issue of damages, except to the extent it permits [the purchaser] to adduce evidence of a plan for the property. In accordance with Jackson J.A.’s direction in the SKCA Decision (paras 102 and 109), any new submissions as to damages must be confined to the two issues remitted to the trial judge, being the appropriate date for the assessment of damages and evidence of land value as at that date.

Richmond Hill (Town) v Elginbay Corporation: Statutory Uncertainty Required for Deference to Tribunal

Posted in Standards of Appellate Review

In its decision in Richmond Hill (Town) v Elginbay Corporation, 2016 ONSC 5560 the Ontario Divisional Court noted that in order for a tribunal’s statutory interpretation to be entitled to deference, there must have been a “statutory uncertainty.” Where no such uncertainty exists, the tribunal’s interpretation will not be afforded deference.

This case arose in the context of a municipal planning issue. Pursuant to s. 42 of the Planning Act, a municipality may pass a by-law requiring a developer –  as a condition for land development – to convey land for parks or other recreational purposes, or to pay cash-in-lieu of such a conveyance. In 2010, Richmond Hill’s town council exercised this power, adopting a standard formula to calculate the amount that condominium developers were required to pay the municipality in lieu of creating parkland to accompany new developments. In 2015, the Ontario Municipal Board (“OMB”) imposed on the cap on the application of this standard rate (equivalent to 25% of the area of any site to be developed or its cash-in-lieu equivalent). The Town of Richmond Hill appealed the OMB’s decision.

At issue on appeal was whether the OMB had the authority to impose a cap on the municipality’s alternative parkland dedication. Applying a reasonableness standard of review, the Ontario Divisional Court determined that the OMB had overstepped its jurisdiction. The OMB’s decision was inconsistent with municipalities’ broad powers to  make “individual planning decisions that affect their citizens” (para 48). The OMB had unnecessarily fettered the discretion of the town to make its own decision to set the alternative rate, contrary to Parliamentary intent as expressed in the Planning Act (para 52).

Furthermore, the Divisional Court concluded that the OMB’s statutory interpretation of the Planning Act  was “unreasonable on the face of the plain wording of s. 42” (para 46). The Board’s interpretation, the Divisional Court found, “effectively abrogates the role that the Legislature intended municipalities would perform and instead bestows that role onto itself” (para 45-46).  The Court further noted at para 47:

[47]           The modern principle of statutory interpretation, and the concomitant deference to the interpretation adopted by an administrative tribunal, rests on the prerequisite that there exists  “a statutory uncertainty” thus giving rise to the possibility of competing reasonable interpretations.  There is no statutory uncertainty here nor did the OMB point to one.  Rather, the OMB appears to have adopted a statutory interpretation solely for the purpose of allowing it to regulate the municipality’s exercise of its authority under s. 42. [Emphasis added]


Boston Pizza v Registrar, Alcohol and Gaming: Standard of review applicable to decision of the License Appeal Tribunal is reasonableness

Posted in Standards of Appellate Review

The Divisional Court’s decision in  2193145 Ontario Inc. o/a Boston Pizza v Registrar, Alcohol and Gaming, 2016 ONSC 3552 clarifies that the standard of review from the decision or order of the License Appeal Tribunal (“LAT”) is reasonableness. Justice Horkins noted that uncertainty in the authorities on the correct standard necessitated further explanation on this issue.


Shortly after leaving the appellant’s restaurant establishment where he was overserved, an intoxicated patron was struck by a vehicle and died. The Registrar, Alcohol and Gaming issued a Notice of Proposal to Suspend the appellant’s Liquor Licence. The Tribunal found that the appellant breached s. 29 of the Liquor Licence Act by selling liquor to a person who was or appeared to be intoxicated, and s. 45(1) of Ontario Regulation 719/90 by allowing drunkenness on its premises. The appellant’s appeal to the LAT was dismissed. The appellant then appealed to the Divisional Court, which also dismissed the appeal, holding that the decision was reasonable.

Divisional Court’s Analysis

Justice Horkins began by first setting out the correct standard for review for decisions of the LAT. She accepted and adopted Justice Sachs’ basis for the standard of review in 2130845 Ontario Inc. v. Ontario, 2014 ONSC 3595 quoting the decision at length. In that particular case, Justice Sachs rejected the view that the LAT is a generalist tribunal and that the sufficiency of its reasons should be reviewed on a correctness standard:

While it is true that […] the Licence Appeal Tribunal reviews decisions arising under twenty-one different statutes, it does not follow that it lacks expertise relating to licensing issues in this province. The twenty-one statutes specified in LATA are similar in substance and structure. For example, ten of them contain provisions similar to s. 6(2)(d) of the Act. Thus, unlike the courts, the LAT is an adjudicative body that has developed specialized expertise in substantively-related licensing issues across the various regulatory schemes implemented by the Legislature.

In light of this analysis, Justice Horkins concluded “…it is clear from the reasoning provided by Sachs J. that the proper standard of review is reasonableness.”

Justice Horkins then applied this standard of review to the case current case. Beginning with an analysis under s. 29 of the Liquor License Act, the appellant challenged the Tribunal’s interpretation of the provision and the evidence used to support it. Justice Horkins rejected the appellant’s contention and found that the Tribunal correctly identified the legal test under s. 29 and applied it as it was required to do so. The test in this case was that “no person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.”

According to Justice Horkins, the Tribunal’s application of s. 29 of Liquor License Act was consistent with direction of the Supreme Court of Canada, noting that “where the court stated that the ‘words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.’”

The Tribunal fairly reviewed and considered evidence of intoxication in light of the properly identified legal test. Additionally, the Tribunal had ample evidence to support the finding that the deceased was served liquor when he appeared to be intoxicated.

Justice Horkins also found the Tribunal’s decision pertaining to s. 45(1) of the Regulation reasonable. The Tribunal, once again, had ample evidence that the appellant permitted drunkenness in its premises, thereby breaching the Ontario Regulation.


Ledcor Construction Limited v Northbridge Indemnity Insurance Company: the SCC revisits Sattva on standard of review for contractual interpretation

Posted in Standards of Appellate Review

While initially heralded as a transformative for the law of contractual interpretation and appellate intervention, the legacy of Sattva Capital Corp v Creston Moly has become more complicated as the Supreme Court begins to revisit this case.

Sattva arose in the context of a finder’s fee agreement. An arbitrator’s interpretation of this agreement entitled Sattva to a finder’s fee, the size of which Creston disputed. The arbitral award led to a dizzying string of appeals, culminating at the Supreme Court. Historically, contractual interpretation had been viewed as a question of pure law, reviewable under a correctness standard of appellate review. In Sattva, the Supreme Court reversed this historical standard. The Court’s finding that contractual interpretation amounted to a question of mixed fact and law had immediate implications for the appellate standard of review, requiring the application of a very deferential standard of palpable and overriding error. Nonetheless, Sattva left room for provincial appellate courts to review cases involving contractual interpretation on the historical correctness standard where an extricable question of law could be identified.

Following Sattva, a growing chorus of dissent emerged from the provincial appellate courts about the standard of review that applied to the interpretation of standard form contracts. This dissent culminated in Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., in which the Supreme Court clarified how its decision in Sattva should be interpreted in the context of standard form contracts. In Ledcor, a contractor was hired to clean the windows of a building under construction, but in doing so damaged its windows. The windows’ replacement cost was claimed under a builders’ risk insurance policy, but the insurers denied coverage under an exclusion clause. At issue was the proper interpretation of the exclusion clause in the standard-form insurance contract. At trial, the judge concluded the windows’ replacement cost was not excluded. Applying a correctness standard of review, the Alberta Court of Appeal overturned the trial judge’s decision. Taking the opportunity to revisit its decision in Sattva, the Supreme Court found that the Alberta Court of Appeal had applied the appropriate standard of review.

In Ledcor, the Supreme Court recognized a possible exception to its holding in Sattva, finding that where: (i) an appeal involves the interpretation of a standard form contract, (ii) the interpretation at issue is of precedential value, and (iii) there is no meaningful factual matrix that is specific to the particular parties to assist in the interpretation process, this interpretation is better characterized as a question of law, subject to a correctness standard of review. The Court found that the reasons underlying the decision in Sattva are generally “less compelling in the context of standard form contracts”. First, the factual matrix surrounding the formation of the contract is less relevant to adhesion contracts, where parties have not negotiated terms. Second, the interpretation of standard form contracts – which are typically highly-specialized in nature and widely distributed to customers without negotiation of their terms – may have significant precedential value. Consistency in the interpretation of such contracts may be of interest to the legal system in the future. This is not to say that following Ledcor the interpretation of a standard form contract will always be a question of law; rather, the Supreme Court left this determination to the provincial appellate courts.

In the wake of Ledcor, it remains to be seen whether the Supreme Court will further clarify its decision in Sattva. One opportunity to do so will arise when the Court hears the appeal of Teal Cedar Products v British Columbia  in November 2016. This case relates to a settlement agreement between Teal Cedar and the Province of British Columbia under the B.C. Forestry Revitalization Act. In Teal Cedar, an arbitrator awarded interest on the settlement award to Teal Cedar, notwithstanding a clause in an addendum to the settlement agreement which the Province submitted precluded an award of interest. The Alberta Court of Appeal determined that the appropriate standard of review was correctness in relation to both the arbitrator’s statutory and contractual interpretation in that case. Considering the arbitrator’s statutory interpretation, the Court of Appeal found that no deference was owed to the arbitrator, who had no special expertise in the legislation at issue. With regard to contractual interpretation, the Court of Appeal found that an extricable question of law had arisen as to whether the arbitrator had incorrectly allowed the surrounding circumstances to overwhelm the words of the settlement agreement. In the appeal of Teal Cedar, the Supreme Court will have an opportunity to weigh in on the standard of review applicable to commercial arbitrations which engage both statutory and contractual interpretation. The Court will also have the chance to clarify whether allowing the surrounding circumstances to overwhelm the words of an agreement is an “incorrect legal principle” which attracts a correctness standard. It remains to be seen what further guidance we will see from the Court in the post-Sattva era.


Sorila v. Chan: Standard of Appellate Review not a matter of “directions”

Posted in Standards of Appellate Review, Uncategorized

In Sorila v. Chan, the British Columbia Court of Appeal held that it was inappropriate for the standard of review to be determined by way of directions. The court ruled that determining the standard of review to be applied to an appeal is an issue which goes to the substance of that appeal, and which therefore must be determined and applied by the judge hearing the appeal.

The appellant had brought an application to commence third party proceedings, which was dismissed by a master. The appellant subsequently appealed the master’s decision to a B.C. Supreme Court judge. In that appeal, the judge in chambers provided directions that the standard of review to be applied was the “clearly wrong” standard. The appellant – without proceeding with the appeal – instead appealed the chambers judge’s directions regarding the appropriate standard of review.

The Court of Appeal quashed the chambers judge’s directions, noting that the standard of review should not be determined by way of directions:

[20]        The standard of review on an appeal from a master is a nuanced question, requiring an analysis of the importance of the master’s ruling to the final disposition of the case. That analysis depends very much on the circumstances of an individual case: see Kalafchi v. Yao, 2015 BCCA 524 (CanLII), particularly at para. 16.

[21]        The correct standard of review from the order of a master will often be closely tied to the substantive issues on the appeal. It is therefore appropriate that it be decided by the judge hearing the appeal, as part of the appeal proceedings.

[22]        It was, therefore, improper for the parties to seek to resolve the issue of standard of review by way of directions rather than in the appeal itself. The problem is compounded in this case, because the judge who gave the directions is now retired, and will not be hearing the substantive appeal. His ruling should not bind the judge who hears the appeal, who may well take a different view of matters.