Cases Regarding Appellate Procedural Matters

The following are brief summaries of recent Court of Appeal decisions regarding procedural matters, many of which arise frequently in the Court. These summaries are intended as a quick reference to direct counsel to relevant authorities and a brief synopsis of general principles addressing these issues. Links to decisions cited are to the CanLII Website.

NOTE: The content of this website is for general informational purposes only and does not constitute legal advice. Furthermore, legal principles may change with time. Decisions may be reversed or varied on appeal, or otherwise not followed in subsequent court proceedings. They may also be restricted in application to a particular context. Without limiting the generality of the foregoing, this information should not be relied upon for specific legal matters. Readers should not rely on the information contained in this website without consulting a lawyer.

Appeal Books and Facta - Inclusion of Documents which were not Evidence at Trial: Items included in an appeal book or referred to in a factum but which were not actually in evidence at trial (but instead provided as an aide memoire), should be clearly marked so as to ensure they are not inadvertently presented as though they are evidence. An explanatory statement is required in the appeal book and factum: Wasylyk v. Simcoe (County), 2023 ONCA 473 (CanLII), at paras. 11 and 12.

Costs - Security for Costs: Harvison Young J.A., after citing Rule 61.06(1) of the Rules of Civil Procedure and Rule 38(26) of the Family Law Rules, cites Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 22. In deciding motions for security for costs judges are obliged to first consider the specific provisions of the Rules governing those motions and then effectively to take a step back and consider the justness of the order sought in all the circumstances of the case, with the interests of justice at the forefront. Accordingly, even if the test set out under r. 61.06(1) has been met, the motion judge must consider the justness of the order holistically, examining all the circumstances of the case and guided by the overarching interests of justice to determine whether it is just to make an order for security for costs: Karatzoglou v. Commisso, 2023 ONCA 295 (CanLII) at paras. 5 to 8.

Dismissal of Appeals - Frivolous and Vexatious Appeals: Pursuant to Rule 2.1.01 of the Rules of Civil Procedure, the panel dismissed an appeal on the basis that it was frivolous, vexatious and an abuse of process. The panel noted that Rule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. No evidence is submitted on the motion. There are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1: Samra v. Ontario (Attorney General), 2023 ONCA 420 (CanLII).

Evidence - Fresh Evidence on Appeal: Copeland J.A., for the Court, sets out the well-established test from Palmer v. The Queen, [1980] 1 S.C.R. 759: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) The evidence must be credible in the sense that it is reasonably capable of belief; and (4) The evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result: Costanza v. Desjardins Financial Security Life Assurance Company, 2023 ONCA 54 (CanLII) at para. 32.

Facta and Compendia: In this must-read decision, Brown J.A., reviews the purposes of the factum and the oral hearing, as well as outlining the form for Oral Hearing Compendia. Brown J. A. clearly favours a compendium outline which, within the word limit, has key paragraphs which counsel would like to see in the panel’s reasons on each major issue. This form of outline “not only identifies the issues counsel intends to address but offers language explaining why the judge below did or did not err on each issue. It tries to plant in the minds of the panel the linguistic and analytical kernels for the disposition of an issue, which the panel can then water and transform into reasons accepting counsel’s position on the issue”: Robertson v. Ontario, 2023 ONCA 454 (CanLII).

Jurisdiction - Final vs. Interlocutory Orders: The Court cites the general principles in determining whether an order of the Superior Court is final or interlocutory for purposes of the CJA appeal routes. An interlocutory order is an order which “does not determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right”. An order “may be final in the sense that it determines the very question raised by the motion or application before the court but it is interlocutory if the merits of the case remain to be determined. In determining whether an order under appeal is final or interlocutory, one must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order: Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 144 (CanLII), at paras. 33-34.

Leave to Appeal to the Court of Appeal: Brown J.A. cites the general principles from n Sault Dock Co. Ltd. v. Sault Ste. Marie (City) [1973] 2 O.R. 479 (C.A.). While it may not be desirable to attempt to formulate a catalogue of the circumstances under which leave to appeal would be granted by this Court, to carry out what is considered to be the purpose of the Legislature, the Court of Appeal should be satisfied before granting leave that the matter will present an arguable question of law or mixed law and fact requiring of the Court consideration of matters such as the following: (a) the interpretation of a statute or Regulation of Canada or Ontario including its constitutionality; (b) the interpretation, clarification or propounding of some general rule or principle of law; (c) the interpretation of a municipal by-law where the point in issue is a question of public importance; (d) the interpretation of an agreement where the point in issue involves a question of public importance. The Court will of course consider also cases where special circumstances would make the matter sought to be brought before the Court a matter of public importance or would appear to require that in the interest of justice leave should be granted – such as the introduction of new evidence, obvious misapprehension of the Divisional Court of the relevant facts or a clear departure from the established principles of law resulting in a miscarriage of justice. The outlining of the foregoing criteria is not to say that in cases in which there is clearly an error in a judgment or order of the Divisional Court, it is not the duty of the Court of Appeal to grant leave so that it might correct the error. However, the possibility that there may be error in the judgment or order will not generally be a ground in itself for granting leave: Louis v. Poitras, 2020 ONCA 815 (CanLII) at para. 37.

Motions in the Court of Appeal- Review of a Decision of a C.A. Motion Judge: A panel dismissed a motion to review a decision of a single judge of the Court, which in turn had dismissed a motion by the appellant to extend the time to appeal an order of a Superior Court justice. The panel noted that their review of a motion judge’s decision under s. 7(5) of the Courts of Justice Act was not a de novo determination, and that discretionary decisions of a motion judge are entitled to deference: Awad v. Dover Investments Limited, 2023 ONCA 542(CanLII),

Stay Pending Appeal - Lifting of Stay: Paciocco J.A. sets out the jurisdiction and test for lifting a temporary judge-ordered stay pending appeal: Sub-Prime Mortgage Corporation v. Kaweesa, 2021 ONCA 215 (CanLII),at paras. 38 to 46.

Stay Pending Appeal - General Test: Lauwers J.A. cites the governing principles from earlier decisions. The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure requires the court to consider the following factors: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. These three factors are not watertight compartments; the strength of one may compensate for the weakness of another. The overarching consideration is whether the interests of justice call for a stay: Dieffenbacher v. Dieffenbacher IV, 2023 ONCA 189 (CanLII), at para. 10.

Stay Pending Appeal to Supreme Court of Canada: In addition to the general governing principles, it is noted that when a party is seeking a stay of a decision pending an application for leave to appeal to the Supreme Court of Canada, the “serious issue” factor is modified. The application judge must make a preliminary assessment of the merit of the leave application, taking into consideration the stringent leave requirements in the Supreme Court Act. Since the Supreme Court of Canada typically grants leave only in cases of public or national importance, an application judge must consider whether these considerations are apt to be met. The threshold on both the merits and the national or public importance considerations remains low. A low likelihood that the Supreme Court will grant leave “will militate against the imposition of a stay: Sutton v. Sutton, 2023 ONCA 192 (CanLII), at paras. 6 to 9.

Time to Appeal - Extension of Time to Appeal: Gillese J.A. applies the well-established test for determining whether to grant an extension of time to file a notice of appeal: (1) whether the moving party formed an intention to appeal within the relevant period; (2) the length of, and explanation for, the delay;(3) whether the responding party would suffer prejudice as a result of the delay; and (4) the merits of the proposed appeal. She also notes that the overarching principle is whether the justice of the case requires that the extension be granted: Faraone v. Hitti, 2023 ONCA 512 (CanLII),at paras. 5 and 6.