Court of Appeal for Ontario articulates limits on jurisdiction to ‘pull up’ an appeal

The Court of Appeal for Ontario recently released brief reasons which provide essential guidance regarding the limits of the Court’s ability to ‘pull up’ an appeal properly in the Divisional Court. The Court has discretion under subsection 6(2) of the Courts of Justice Act to assume jurisdiction over an appeal properly in the Divisional Court where an appeal to the Court of Appeal is underway in the same proceeding. In Wright v. Strauss, 2019 ONCA 844, the Court of Appeal addressed whether this discretion exists where the motion judge made two orders—supported by a single set of reasons—in respect of two technically different proceedings involving the same parties. The Court of Appeal has confirmed that subsection 6(2) does not apply in that circumstance.

Wright involved two proceedings and two orders, but the same parties and the same set of reasons from the motion judge. The first order dismissed an oppression application brought under the Ontario Business Corporations Act, from which an appeal lies to the Divisional Court pursuant to s. 255 of that Act. The second order—which was made at the same time and addressed in the same set of reasons as the oppression application—struck the appellant’s statement of claim and dismissed the action against certain defendants. This was a final order to which an appeal lay to the Court of Appeal, which the Court dismissed (2019 ONCA 823).

The jurisdictional question in Wright was whether the appeal to the Court of Appeal allowed the Court to also assume jurisdiction over the oppression appeal pursuant to the transfer provision in subsection 6(2) of the Courts of Justice Act. This provision is discussed in detail in Sopinka and Gelowitz on the Conduct of an Appeal, Fourth Edition, §§1.180-1.183. From a purposive perspective, applying subsection 6(2) to Wright would have arguably advanced the provision’s statutory objective, which is to prevent a multiplicity of related appeals in different appeal courts.

However, subsection 6(2) contains statutory limits which bind the Court of Appeal. Importantly, the provision is limited to multiple appeals “in the same proceeding”. In Wright, as the Court of Appeal held, the two appeals were from orders in “legally distinct proceedings”. As the Court held:

… Although the motion judge released only one set of reasons, he issued two orders for two factually related but legally distinct proceedings, each with its own originating process: the Order, striking a notice of application regarding the transfer of a mortgage from a family company to the Trust; and the Second Order, striking a statement of claim challenging the validity of the Trust.

Accordingly, it is necessary to consider whether the orders arose from proceedings grounded in different originating processes (e.g., statement of claim or notice of application). Where that is the case, it does not matter that the motion judge heard aspects of the “proceedings” together and issued a single set of reasons addressing factually related matters. Subsection 6(2) does not apply.

The Court of Appeal proceeded to address the appellant’s argument that the panel should reconstitute itself as the Divisional Court to entertain the oppression appeal. This is possible, but rare, as discussed in Conduct of an Appeal, §§1.178-1.179. In Wright, the panel declined to seek permission from the Chief Justices[1] to reconstitute itself as a panel of the Divisional Court because this was not a case where the jurisdictional issue was raised only after the appeal had been argued. In fact, the Court itself raised the jurisdictional issue nearly four months before the hearing. This approach is consistent with the precedents discussed in Conduct of an Appeal, which suggest a greater willingness for the panel to reconstitute itself where the jurisdictional issue only arose for the first time after the appeal had been argued before the panel.

The Court of Appeal ordered that the Wright appeal be transferred to the Divisional Court.