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Appeals - You Should Exhaust Lower Appellate Remedies Before Going Higher

. Bernard Property Maintenance v. Taylor

In Bernard Property Maintenance v. Taylor (Ont CA, 2019) the Court of Appeal held that the normal review route for setting aside an order of a single judge of the Divisional Court is with a motion to a panel of that court [under CJA 21(5)]. However, on the unusual procedural facts of the appeal case, the court re-constituted itself as a CJA 21(5) Divisional Court panel "with the assent of the Chief Justice of the Superior Court of Justice and the consent of the parties" and heard the appeal nonetheless. The court makes the interesting point [at para.3] that the Divisional Court appeal (and set-aside) provisions should be exhausted before continuing to the Court of Appeal [para 3]:
A. Appeal Improperly Brought in this Court

[1] This appeal from a single judge of the Divisional Court came before us sitting as a panel of the Court of Appeal. At the outset we asked the parties to address the jurisdiction of this court to hear the appeal. Mr. Taylor argued that appeal lay to this court pursuant to s. 6(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[2] I disagree. A line of authority establishes that the proper process to set aside or vary a decision of a single judge of the Divisional Court is a motion pursuant to s. 21(5) of the CJA before a panel of the Divisional Court. Mr. Taylor’s appeal was improperly filed in this court.

[3] In Overseas Missionary Fellowship v. 578369 Ontario Ltd. (1990), 1990 CanLII 6771 (ON CA), 73 O.R. (2d) 73, Morden A.C.J.O. held the appeal routes within the Divisional Court should “take precedence over and exclude the general terms of” the provisions governing appeal to this court, currently at s. 6(1) of the CJA: at p. 75. More recently, in Alliance to Protect Prince Edward County v. Ontario (Environment and Climate Change), 2018 ONCA 576, 17 C.E.L.R. (4th) 167, Lauwers J.A. observed that “the structure of the [CJA] requires a person to exhaust the remedial jurisdiction of the Divisional Court before coming to the Court of Appeal”: at para. 13. In Coote v. Ontario (Human Rights Commission), 2010 ONCA 580, this court summarily quashed an appeal of an order of a single judge of the Divisional Court to the Court of Appeal, stating, “The appellant’s proper appeal route is to a panel of the Divisional Court on a motion under s. 21(5) of the Court of Justice Act”: at para. 2.

[4] The reconstitution of a panel of this court as a panel of the Divisional Court is an action that is practically abandoned: P.M. v. M.A., 2017 ONCA 6, at para. 6. However, in the unusual circumstances that this court granted Mr. Taylor leave to appeal, a stay of the order below, and an extension of time, we reconstituted ourselves as a panel of the Divisional Court to hear and determine the matter as if it were a motion brought under s. 21(5) of the CJA with the assent of the Chief Justice of the Superior Court of Justice and the consent of the parties.


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