Ontario (Provincial Police) v. Assessment Direct Inc.: Chambers judge cannot rule on jurisdiction of Court of Appeal for Ontario

In Ontario (Provincial Police) v. Assessment Direct Inc., Justice Juriansz, sitting in chambers, declined to hear a motion seeking directions on the proper appeal route, holding that only a panel could decide whether the Court of Appeal for Ontario had jurisdiction to hear the appeal.

Background

The appellants appealed an order of a Superior Court judge ruling on issues of solicitor-client privilege and litigation privilege over documents and audio files seized during the execution of search warrants.

The parties disagreed on whether the Court of Appeal had jurisdiction to hear the appeal. The appellants argued that the order under appeal was a final order in a civil matter and appealable as of right to the Court of Appeal under clause 6(1)(b) of the Courts of Justice Act. The respondent argued that the order was made in a criminal matter and could only be appealed directly to the Supreme Court of Canada, with leave under subsection 40(1) of the Supreme Court Act. To resolve this dispute, the appellants brought a motion seeking directions with respect to the proper appeal route.

Motion for directions adjourned to a panel

Justice Juriansz declined to hear the motion and adjourned it to be heard by a panel. He found that “[t]he statutory and rules-based framework that defines this court’s jurisdiction, along with this court’s own practice directions, indicate that a single judge has no power to decide whether an appeal is within the jurisdiction of this court.” This was true whether the order under appeal was made in civil or criminal proceedings.

If the order was made in a civil proceeding, Justice Juriansz held that subsection 134(3) of the Courts of Justice Act,  subrule 61.15(2.2) of the Rules of Civil Procedure, and  section 7.2.1 of the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario indicated that an order quashing or finally determining an appeal could only be made by a panel.

A similar framework applied if the proceeding was criminal. Although the Criminal Appeal Rules did not provide a procedure for a motion to quash for lack of jurisdiction, the Rules of Civil Procedure generally applied to criminal appeals where the Criminal Appeal Rules were silent. Further, the Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario provided that a panel would hear motions to quash an appeal.

Justice Juriansz also referred to previous decisions holding that the Court’s jurisdiction can only be determined by a panel (see, for example, RREF II BHB IV Portofino, LLC v. Portofino Corp. and Shinder v. Shinder). He added that any decision made by a single judge would not be binding on the Court. While there were cases where judges sitting in chambers granted declarations regarding the Court’s jurisdiction, Justice Juriansz said that these were inconsistent with the governing framework set out in his decision.

Postscript

While Ontario (Provincial Police) appears to definitively decide that a judge sitting in chambers cannot rule on the Court of Appeal’s jurisdiction, it may not be the final word on this issue. In DAC Group (Holdings) Limited v. Fuego Digital Media Inc., a decision released shortly after Ontario (Provincial Police), Justice Benotto, while sitting in chambers, found that the Court of Appeal did not have jurisdiction to hear an appeal from a conditional stay of enforcement of an arbitration award.

 

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