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Appellate Litigation

Appeals in Ontario are traditionally heard by way of both oral and written submissions. However, the COVID-19 pandemic has created extraordinary circumstances to which we must all adapt as best we can. Since March 17, 2020, there have been no in-person appeals heard at the Court of Appeal. More than 100 scheduled appeals have had to be adjourned. Through a series of Practice Directions, this court has endeavoured to address the tremendous disruption caused by the pandemic. As a result, appeals are being heard in writing or remotely until in-person appeals can resume. Case management conferences are being held to manage and schedule them.

The Ontario Court of Appeals (ONCA) decision in 4352238 Canada Inc. v SNC Lavalin Group Inc., gave notice to the profession and their litigants that it is able and willing to proceed with appeals in writing only during the COVID-19 pandemic. It is a signal that the system has to keep moving and that many of the old rights and obstacles of the past will not be a bar to case movement despite the provincial emergency.

A Simple Contract Dispute

An appeal to the ONCA was scheduled to be heard in April of this year, but it was adjourned due to the COVID-19 emergency. The appeal was from the dismissal of an Application seeking the interpretation of one clause at the heart of a contract dispute, with a relatively easy set of facts. The matter was sent to a Case Management Hearing. The appellant objected to having the appeal done in writing. They relied on the provincial Rules of Practice, which mandated an oral hearing unless the parties consented otherwise. That should be the end of the matter, the appellant thought with some justification.

ONCA: Courts Have Jurisdiction to Decide Form of Appeal

  1. The Courts hold a broad control and thereby are given the implicit or ancillary jurisdiction to manage and control its process;
  2. The Courts have the jurisdiction to make any procedural order to prevent an abuse of process and to ensure the just and efficient administration of justice; and
  3. The Courts hold these implicit powers and all others that are reasonably necessary to achieve and perform their mandate.

As a result, although the Rules contemplate an oral hearing, they do not say one is required. The ONCA made note of Rule 1.04(1) which mandates and directs that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

Therefore, it was well within the Court’s jurisdiction to order a civil appeal to be held in writing only when that is required to accomplish the administration of justice. Not all can be or should be, accommodated by using remote oral appeals. When appropriate, some appeals must proceed in writing in order to expedite the process and continue hearing appeals in a timely and orderly fashion. Particularly given that the case at hand did not involve complicated facts, it was a good choice to be heard in writing only.

The parties were directed as follows:

  1. File supplementary facta not exceeding ten pages in length;
  2. Further submissions may be sought by the panel hearing the appeal;
  3. Filing and service directions were given.

The Further Appeal

The appellant has brought a motion to have the Order made at the Case Conference set aside by a full ONCA panel pursuant to section 7(5) of the Courts of Justice Act. We think it unlikely that the full panel, if the matter gets that far, will reverse the Order but it will be interesting to read the reasons as they will likely guide the profession to the direction the Courts are likely to take.

At Milosevic & Associates, our team of Toronto corporate commercial lawyers regularly represent clients in complex commercial litigation matters ranging from straightforward contract and partnership disputes to complex multi-party commercial claims including dealing with claims of loss from real estate transactions. Over the years, our team of exceptional litigators has seen it all and has successfully fought for our clients’ rights. Our impressive track record speaks for itself.  Call us at 416-916-1387 or contact us online to schedule a consultation.