|
Appeals - Court of Appeal with Leave [CJA s.6(1)(a)]. Hordo v. CAA Insurance Company
In Hordo v. CAA Insurance Company (Ont CA, 2025) the Ontario Court of Appeal allows a motion to extend time, here wrt a CJA s.6(1)(a) motion for leave to appeal of Divisional Court order (which it adjourns to a panel of the court):[1] The Hordos wish to appeal the decision of the Divisional Court dated December 6, 2024, and released to the parties on December 16, 2024. Section 6 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that:(1) An appeal lies to the Court of Appeal from,
(a) an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal as provided for in the rules of the court ... .
[2] Rule 61.03.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that a party may make a motion for leave to appeal in writing, which “shall be served within 15 days after the making of the order or decision from which leave to appeal is sought.” This would set the deadline to serve a motion for leave to appeal in writing at December 23, 2024 or, reading the rule generously and counting from December 16, 2024 when the parties say the decision was released to them, December 31, 2024.
[3] The Hordos did not submit anything to the Court of Appeal until February 18, 2025. They have since been unable or unwilling to comply with the Rules.
[4] In their filed material, the moving parties do not actually seek leave to appeal, although the motion could be deemed to do so. However, I am in no position to override the provisions of the Courts of Justice Act and grant any of the relief sought in the Notice of Motion, which is properly sought before a panel, including leave to appeal. Accordingly, the Hordos will need leave from a panel of this court if the appeal is to proceed.
[5] The motion in writing that has been put before me seeks, among many things, “[a]n Order setting aside the Judgment of Divisional Court Adjudicating Panel, Jarvis, Sachs and Matheson JJ., December 06, 2024, for errors of law and fact.”
[6] However, my task as a single judge is more limited. It is whether to permit the Hordos to proceed with their motion for leave to appeal even though it is long out of time. . Elkins v. Van Wissen
In Elkins v. Van Wissen (Ont CA, 2024) the Ontario Court of Appeal made the interesting point that an appeal with leave to the CA was heard on a standard of review of "on a question that is not a question of fact alone" (which includes issues of mixed fact and law), despite the lower Divisional Court appeal being heard on 'questions of law' (eg. LATA, RTA):[74] To determine what standard of review this court is to apply when deciding Issue 2, we must consider the statutory provision which led to that issue coming before this court: Vavilov, at para. 33. In this case, s. 6(1)(a) of the CJA is the relevant provision, as the Tenants obtained leave to appeal the Divisional Court order pursuant to it.
[75] Section 6(1)(a) provides that an appeal lies to this court from an order of the Divisional Court, with leave, “on a question that is not a question of fact alone”. Thus, when an appeal comes before this court pursuant to s. 6(1)(a) of the CJA, the appeal can be on a question of law and/or on a question of mixed law and fact. The only limitation is that the question cannot be one of fact alone. Because the legislation does not indicate what standard of review this court is to apply on appeals heard pursuant to s. 6(1)(a), it is necessary to characterize the nature of Issue 2 to determine what standard of review applies. Thus, the question becomes, does Issue 2 raise a question of law or a question of mixed law and fact? If the former, the correctness standard of review applies. If the latter, absent an extricable error in principle, deference is owed to the Divisional Court decision.
|
