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Appeals - Single Motion Judge Versus Panel

Both the Divisional Court [CJA 21(4)] and the Court of Appeal [CJA 7(4)] have authority for a single judge on motion to transfer it to a panel. These cases are about where and when that is required - which seems to be about the seriousness of the underlying issue, for example jurisdiction.

. Dal Bianco v. Deem Management Services Limited

In Dal Bianco v. Deem Management Services Limited (Ont CA, 2020) a single judge of the Court of Appeal held that only a three-judge panel could decide jurisdictional issues, in this case whether the Court of Appeal or the Divisional Court had jurisdiction to hear a specific appeal:
[4] A single judge of this court lacks jurisdiction to decide this jurisdictional issue. It is settled that “[q]uestions of whether an appeal lies within the jurisdiction of this court must be decided by a three-judge panel of this court” and thus “a single judge has no power to decide whether an appeal is within the jurisdiction of this court”: Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986, at para. 4; see also Shinder v. Shinder, 2017 ONCA 822, at para. 4. Although this motion is framed as a motion for directions, if I were to find that this court lacks jurisdiction I would in effect be quashing the appeal, which only a panel of this court has jurisdiction to order: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(3); RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906, at para. 6.
. Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction)

In Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction) (Ont CA, 2021) a single judge of the Court of Appeal considered a messy appeal situation which ultimately required a full panel to decide:
[1] I have two motions before me. One motion is brought by the Regional Municipality of Halton to strike out the motion for leave to appeal brought by the responding party, Lisa Snowball. The other motion is brought by Lisa Snowball for leave to file fresh evidence on the motion for leave to appeal. Ms. Snowball’s motion for leave to appeal seeks to appeal the denial of leave to appeal by the Divisional Court from an order of a Superior Court judge.

[2] Prior to hearing the merits of the motions, I raised with counsel whether a single judge of this court has jurisdiction to determine either of them. I have concluded that I do not.

[3] Only a panel can determine the issue of jurisdiction with respect to an appeal: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(3), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 61.16(2.2). Also, only a panel can determine a motion for leave to appeal: Courts of Justice Act, ss. 7(1), 7(3).

[4] In my view, it follows from these provisions that since a panel must determine the motion for leave to appeal, it is a panel that must determine any jurisdictional issue relating to the motion for leave since, if successful, it would finally determine whether there is an appeal or not. Therefore, it must be a panel of this court that hears and determines the Region’s motion to strike the motion for leave to appeal.

[5] I reach the same conclusion respecting Ms. Snowball’s motion to adduce fresh evidence. Rule 61.16(2) provides that a motion to receive fresh evidence must be made to the panel hearing the appeal. Following the same analysis above relating to the jurisdiction issue, it is my view that, if a panel hearing an appeal must determine the admissibility of fresh evidence on the appeal, a panel hearing a motion for leave to appeal must determine the admissibility of fresh evidence on that motion.

[6] As a result, I order that these two motions be transferred to be heard and determined by a panel of this court. If the panel determines the jurisdictional issue in favour of the Region, then the motion for fresh evidence becomes moot. If the jurisdictional issue is determined in favour of Ms. Snowball, then the panel can direct how the motion for fresh evidence ought to be dealt with.
. Savic v. College of Physicians and Surgeons of Ontario

In Savic v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court considered the motion jurisdiction of a single judge of the Divisional Court (here a motion to quash):
[24] A single judge of the Divisional Court has jurisdiction to dismiss an application for judicial review on the basis that there is an adequate alternative remedy and on the basis of undue delay: Aljawhiri v. Pharmacy Examining Board of Canada, 2019 ONCA 798, at para. 3; Unimac-United Management Corp. v Metrolinx, 2016 ONSC 2032 (Div. Ct.), at para. 7; and Vangjeli v. WJ Properties, 2019 ONSC 5631 (Div. Ct.).

[25] Nevertheless, as held in De Pelham v. Human Rights Tribunal of Ontario, 2011 ONSC 7006, at para.12; Rayonier A.M. Canada Enterprises Inc. v. Independent Electricity System Operator, 2020 ONSC 5460 (Div. Ct.), at para. 17; and Knot v. State Farm Automobile Insurance Company, 2020 ONSC 7672 (Div. Ct.) at para. 18, a single judge of the Divisional Court should not dismiss an application for judicial review except in clear cases.

[26] As addressed below, in my view, this is a clear case where the application for judicial review should be dismissed on a preliminary basis.



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