Court of Appeal panel reconstitutes itself as Divisional Court in exceptional case

In Bernard Property Maintenance v. Taylor, 2019 ONCA 830, a panel of the Court of Appeal for Ontario reconstituted itself as a panel of the Divisional Court to entertain a matter that was improperly brought in the Court of Appeal. Although this power exists (provided the Chief Justice of the Superior Court assents), its exercise in practice is vanishingly rare. Taylor provides further guidance on when the Court of Appeal might exercise this “practically abandoned” appeal power.

Reconstituting as a panel of the Divisional Court

The Court of Appeal has provided guidance in the past regarding when a panel should seek the assent of the Chief Justice of the Superior Court to reconstitute itself as a panel of the Divisional Court. As discussed in Sopinka and Gelowitz on the Conduct of an Appeal, Fourth Edition, this is generally reserved for rare and urgent cases (§1.178- §1.179). Several cases have held that this power is “an option that is generally only resorted to where the jurisdictional issue is noticed after the appeal has been argued and is done to save the parties the expense and inconvenience of having to reargue the appeal” (see e.g., Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839, para. 14). More succinctly, it has been said that “the experience of the court has led to […] [the] practical abandonment” of this power to reconstitute (P.M. v. M.A., 2017 ONCA 6, para. 6).

Application in Taylor

The panel of the Court of Appeal in Taylor concluded that this was one of the rare and exceptional cases where it should seek permission of the Chief Justice of the Superior Court to hear a matter within the jurisdiction of the Divisional Court. After quoting the “practical abandonment” language from P.M., Justice Juriansz held that the following factors favoured exercising the power:

  • The Court of Appeal had given the appellant leave to appeal;
  • The Court of Appeal had stayed the order of the court below;
  • The Court of Appeal had granted the appellant an extension of time; and
  • The parties had consented to the panel reconstituting itself as the Divisional Court.

This is similar to the exceptional circumstance usually noted in the jurisprudence where the jurisdictional issue was not noticed until after the appeal had been argued. The difference is that the jurisdictional issue in Taylor was raised at the outset of the hearing, not noticed afterwards. However, as the Court of Appeal had already granted leave to appeal and certain ancillary orders, the circumstances in Taylor were similar and—perhaps more importantly—similarly exceptional.

Interestingly, the matter in Taylor was not properly an appeal at all. The decision below had been made by a single judge of the Divisional Court. The appellant had filed an appeal in the Court of Appeal, but the matter should have been brought as a motion to a panel of the Divisional Court to set aside or vary the decision of the single judge under subsection 21(5) of the Courts of Justice Act. In reconstituting itself, the panel thus entertained the matter as a motion as opposed to an appeal.

Taylor is an interesting example of the exercise of an exceptional power, but it is not an invitation for parties to routinely ask panels of the Court of Appeal to reconstitute themselves as panels of the Divisional Court. As Justice Juriansz held, this is still “an action that is practically abandoned”.

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Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition

Appellate litigators and judges have turned to Sopinka and Gelowitz on the Conduct of an Appeal for guidance since its first publication in 1993. Now in its fourth edition, this authoritative text remains the go-to resource for both novice and seasoned litigators seeking direction on best practices in preparing and presenting appeals. Originally written by former Supreme Court of Canada Justice John Sopinka and Osler partner and litigator Mark Gelowitz, this latest edition adds Osler’s David Rankin as co-author. This up-to-date version is the most current textbook available on appellate practice in Canada and is invaluable for lawyers looking to avoid costly errors while gaining a deep understanding of the procedural and jurisdictional aspects of launching and conducting appeals.

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Mark Gelowitz

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