Simon's Megalomaniacal Legal Resources

Appeals - Only One Kick at the Can

I spotted this theme recently. Logically, the 'several-kick' problem can only arise when there are at least two levels of appeal, as is the case with CJA 6(1)(a) situations [appeal from the Divisional Court], and not CJA 6(1)(b) cases [direct from the Superior Court]. It's worth watching in future, as are all these judicial 'conservation of energy' doctrines.

. Lamba v. Mitchell

In Lamba v. Mitchell (Ont CA, 2022) the Court of Appeal considers that further appeals from the Divisional Court to the Court of Appeal are rare [under CJA s.6(1)(a), requiring leave]:

[17] An appeal lies to this court, with leave, from an order of the Divisional Court: Courts of Justice Act, R.S.O., c. C.43, s. 6(1)(a). A notice of motion for leave to appeal must be served within 15 days after the making of the order from which leave to appeal is sought: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r.61.03.1(3).

....

[19] The proposed appeal arises out of a decision of the Divisional Court exercising its appellate jurisdiction. I am mindful that appellate decisions of the Divisional Court are intended to be final: Sault Dock Co. v. Sault Ste. Marie (City) (1973), 1972 CanLII 572 (ON CA), 34 D.L.R. (3d) 327 (Ont. C.A.), at p. 328. A further appeal to this court is exceptional: Enbridge, at para. 19.