|
Appeal - Remedy - Remitting
COMMENT
There are at least two different kinds of 'remitting back down' as a remedy for a granted appeal: 1. partially remitting back down to the same judge to resolve one or more specific issues, and 2. remitting back down to a new trial on all issues, which is typically done to a new judge.
. Law Society of Ontario v. AA
In Law Society of Ontario v. AA (Ont CA, 2026) the Ontario Court of Appeal allowed an LSO appeal, that against the decision on an LSO-brought JR which upheld a LST Appeal Division decision supporting a lawyer application on good character grounds.
The court considers the appropriate remedy to a successful appeal of an earlier JR:[150] The general rule is that the appropriate remedy when allowing an application for judicial review is remitting the matter back to the tribunal of first instance: Vavilov, at para. 142. It is only in limited circumstances, such as where there is a single reasonable decision or where the outcome is otherwise inevitable, such that remitting the matter would serve no useful purpose, where the reviewing court may substitute its own decision for that of the tribunal: see e.g., Pepa, at para. 121; Mason, at para. 120.
[151] If I was of the view that certain conduct, such as child sexual assault, could forever preclude a person from being found to be of good character, then this remedy would make sense. Why remit a matter whose outcome is inevitable?: see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, at pp. 227-28. However, the Law Society has not taken that position, nor is it consistent with the scheme of s. 27 of the Act. If certain misconduct precluded an applicant from demonstrating good character, there would be no need to refer every good character matter for a hearing under s. 27(4).
[152] This is not a case like Mason or Pepa where there is a single reasonable interpretation of s. 27 that leads inexorably to a single reasonable outcome. Rather, it is a case where the application of s. 27, interpreted reasonably, leaves room for different outcomes.
[153] For this reason, in my view, the proper remedy is to quash the Appeal Division’s decision and remit the matter back to the Hearing Division to consider the question of AA’s good character afresh, in accordance with the principles set out above. . Hejno v. Hejno
In Hejno v. Hejno (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, this brought against "the order of the application judge ... validating unsigned 2024 draft wills under s. 21.1 of the Succession Law Reform Act".
The court sets out reasons for remitting the decision back down to the lower court, here in an estates-will context:(3) The 2022 Wills’ Validity Should Be Remitted to the Superior Court
[20] Finally, we remit the validity of the 2022 wills to the Superior Court rather than validate them on appeal as Jennifer proposes.
[21] Appellate courts rarely engage in first-instance fact-finding. This exceptional practice is only appropriate if it is both in the interests of justice and practically feasible. It is disfavoured if the court of first instance did not make essential factual findings or provide reasons, there are evidentiary conflicts, and/or credibility and testimonial evidence are at issue: Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, 481 D.L.R. (4th) 581, at paras. 146, 177-78; Swiss Reinsurance Company v. Camarin Limited, 2015 BCCA 466, 82 B.C.L.R. (5th) 68, at paras. 65-66, leave to appeal refused, [2016] S.C.C.A. No. 177; State Farm Mutual Automobile Insurance Co. v. Aviva Canada Inc., 2015 ONCA 920, 128 O.R. (3d) 321, at para. 26, leave to appeal refused, [2016] S.C.C.A. No. 80.
[22] This rule applies here. The validation of an improperly executed will is a fact-intensive inquiry that often turns on extrinsic evidence: Hadley Estate, at para. 40. Undertaking that inquiry would require us to make findings on a matter not addressed by the application judge which involves conflicting evidence that may implicate credibility and require testimony. For instance, Lepore’s affidavit does not mention the 2018 will even though his assistant is alleged to have witnessed it, and the discovery of this earlier will could be in tension with Jennifer’s assertion that John only began to get his affairs in order in late 2021. The appellants could attempt to use both these potential discrepancies to challenge Lepore and Jennifer’s credibility, challenges which might require testimonial evidence to resolve.
[23] Deciding this issue on appeal would not save the parties time and expense either. Related estate and oppression proceedings that engage overlapping issues are ongoing. Thus, the most efficient path forward is remittal. This will allow the Superior Court to address issues across all of the related proceedings with the benefit of discovery, preventing inconsistent findings and piecemeal appeals. . Wilson v. Intact Insurance Company [remedies of full or partial remitting]
In Wilson v. Intact Insurance Company (Ont Div Ct, 2025) the Ontario Divisional Court allowed an insured's joint appeal/JR, this from a LAT SABS ruling that denied them catastrophic impairments benefit.
Here the court considered the remedial issue of (what can be called) 'full' or 'partial' remitting:E. CONCLUSIONS
[47] The reviewable errors I have found under Criterion 6 are sufficient to require a new hearing as they could affect the outcome. Given the circumstances, the new hearing should be before a different adjudicator.
[48] The applicant has requested that if reviewable errors are found, this Court should make a determination that the applicant has a catastrophic impairment and then remit the matter to the tribunal to determine what level of benefits should then flow from that. There are a number of problems with that. First, the role of fact-finding does not sit easily with this court, which is working solely through a “paper” record. That is particularly problematic where factors in various categories are interlinked and the area is highly specialized. Further, the appropriate level of benefits is linked to the degree of impairment found and the determination of benefits should therefore be determined by the same decision maker. Again, that is not an appropriate role for this court.
[49] In addition to the 24% for double vision, Dr. Quaid assessed a further 10% impairment for other visual impairments. The Adjudicator did not allow anything for those either. Given that the visual deficits will need to be determined in a new hearing, I consider it is unnecessary for me to elaborate further on the additional deficits found by Dr. Quaid. The new adjudicator will need to hear the evidence on all of the visual impairments in any event.
[50] Likewise, I have not dealt with the issue of Criterion 7 because of its interaction and dependency on the assessment scores from Criterion 6.
[51] Although I have found that deference is due to the findings of the Adjudicator in other categories, the new adjudicator does not owe the same deference to the original findings. Many of these factual issues overlap and many are dependent on credibility findings and other findings of fact from the applicant’s evidence. Unless the parties can come to some agreement as to levels of impairment in some categories, this cannot be done by cutting and pasting. A new hearing before a new adjudicator is required with respect to all issues.
[52] Accordingly, the decision and reconsideration decision of the Adjudicator is quashed and a new hearing is ordered before a different adjudicator.
|
