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Appellate Practice Directions and Administrative Practices - The Lesser Known Court Rules

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Procedure for appeals in Ontario should be, and usually is, fairly straightforward.  A Notice of Appeal is filed; the appellant perfects the appeal; the respondent (as its name implies) responds.  As two recent decisions from the Court of Appeal and the Divisional Court show, if a lawyer (or party) is not familiar with court practices that are not part of the Rules of Civil Procedure, the process can quickly go off the rails.

 

The Court of Appeal's Practice Directions Regarding How Motions are Heard

First, from the Court of Appeal, is a motion decision by Justice Miller in Yim v. Song, 2016 ONCA 642.  In this case, a party was denied leave to appeal to the Divisional Court from an unsuccessful undertakings and refusals motion.  They then chose to go to the Court of Appeal to appeal the Divisional Court's refusal to grant leave.1  The respondent, not surprisingly, brought a motion to quash the appeal due to lack of jurisdiction. The issue on this motion was whether the respondent should have to deliver its materials responding to the appeal prior to the hearing of the motion, or whether, as the appellant argued, the motion to quash should be heard at the same time as the appeal itself.

The answer to the question requires looking at not just the Rules of Civil procedure, but also the Court of Appeal's practice direction.  This is a document published by the Court of Appeal (originally dating back to 2003, which came into effect in 2004, and last updated in 2008) that covers how the Court of Appeal will, in practice, deal with motions (along with a number of other issues).  The practice direction, along with certain rules in the Rules of Civil Procedure, provide for this hierarchy of motions:

1) A motion that does not potentially dispose of the appeal (except a motion for fresh evidence) is heard by a single judge (Rule 61.16(2.1)).

2) A motion that may dispose of the appeal (e.g. a motion to quash the appeal for lack of jurisdiction, or due to lack of merit) is to be heard by a panel of at least 3 judges (Rule 61.16(2.2)).

3) For a motion before a panel of judges, if the motion might dispose of the appeal for essentially procedural reasons, that motion is heard "at an early date" before the actual appeal is heard (Practice Direction, s. 5.2).

4) For a motion before a panel of judges, if the motion is to quash because of lack of merit, then that motion is heard together with the actual appeal (Practice Direction, s. 5.2).  This is partly why genuine motions to quash for non-jurisdictional reasons are fairly rare at the Court of Appeal - if they are heard together with the actual appeal, then there is not much of a benefit, since you have to prepare to argue the appeal anyway.

Ultimately, the practice direction (rather than any particular Rule) was the downfall of the appellant in this motion.  Because it was a jurisdictional motion to quash (even if it touched on the merits of the case), it was to be heard "at an early date".  So the appellants' attempt to delay the motion to the hearing of the appeal was unsuccessful, because it didn't properly consider the applicable practice direction (regardless of the Rules of Civil Procedure).

Filing Reply Facta at the Divisional Court

Second is a decision from the Divisional Court in Toronto in LBP Holdings Ltd. v Allied Nevada Gold Corp., 2016 ONSC 5326.  This case dealt with whether, on a leave to appeal motion, the appellant was permitted to file a "reply" factum, responding to points raised by the respondent.  In this situation, the appellant had, in fact, filed a Reply factum, and the respondent brought a motion to strike the factum.

The applicable rule in this case provides that a party may file a reply factum to respond to any "issue on which the moving party has not taken a position in the moving party’s factum".  Of note in this case is the court's reliance on both a fairly narrow (but common) reading of this rule, that restricts the right to file a reply factum very narrowly, as well as an "administrative practice" for the court to not even accept a reply factum unless leave is obtained by a judge.  Although the reply factum was responding, in this case, to issues addressed in the other party's factum, these were not "new" issues - so Justice Nordheimer struck the reply factum.

There are two practice points to take note of from this decision: (1) even though it is not in the Rules, the Divisional Court has an "administrative practice" that counsel should be aware of that requires leave to file a reply factum, and (2) when a party is drafting their factum, they need to anticipate what the other side might say in response - unless it is a completely "new" issue raised in response, a moving party on a leave to appeal motion will not be able to respond to the particular arguments made by the other side.

Both this case, and the case discussed above from the Court of Appeal, show the importance of not only knowing the Rules of Civil Procedure, but being aware of any practice directions or administrative practices of the court you are dealing with.

 

 

1.  As Justice Miller states, the "general rule is that decisions refusing or granting leave to appeal are not appealable". The issue of whether the Court of Appeal will hear their appeal isn't the point of this article, but I will put my reputation on the line and predict that the Court of Appeal will ultimately quash this appeal due to lack of jurisdiction.

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