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Appeal - Leave to Appeal - Second Appeals. Formula First Collision v. Aviva Canada
In Formula First Collision v. Aviva Canada (Ont CA, 2026) the Ontario Court of Appeal considered an appellate motion, here to strike an affidavit filed and relied up "in its factum in support of a motion for leave to appeal a decision of the Divisional Court".
Here the court identifies case authority for the test for leave to appeal motions, which it refers to as leading to 'second appeals':[2] Motions for leave to appeal are heard in writing by a panel of this court. The panel considers several factors, as set out in Sault Dock Co. v. Sault Ste. Marie (City), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.). The granting of a second appeal is exceptional. That said, leave may be granted where special circumstances raise matters of public importance.
[3] Formula First relies on Mr. Gobatto’s affidavit with respect to the question of public importance. The affidavit has not been admitted. It is the panel considering the motion for leave to appeal that decides whether to admit the evidence when considering the leave motion. However, a motion to strike the affidavit may be properly brought before a chambers judge: Canada Mortgage and Housing Corp. v. Iness (2002), 2002 CanLII 15707 (ON CA), 62 O.R. (3d) 255 (C.A.), at para. 15. . Lamba v. Ontario (Trust in Real Estate Services Act 2002, Registrar)
In Lamba v. Ontario (Trust in Real Estate Services Act 2002, Registrar) (Ont CA, 2026) the Ontario Court of Appeal denies a motion to extend time to commence a leave to appeal motion.
The court considers the test to be applied in leave to hear 'second appeals', as here:[13] Leave to appeal Divisional Court decisions, thereby granting a second appeal, is granted in exceptional cases: Sault Dock Co. Ltd. v Sault Ste. Marie (City) (1973), 1973 CanLII 493 (ON SC), 2 O.R. 479 (C.A.), at para. 6. Those cases tend to raise questions of law or mixed fact and law of importance to those beyond the parties to the proposed appeal such as the interpretation of legislation or clarification of some general rule or principle of law that requires resolution: Sault Dock Co. Ltd., at para. 8; Iness v. Canada Mortgage and Housing Corp. (2002), 2002 CanLII 15707 (ON CA), 62 O.R. (3d) 255 (C.A.), at para. 4. Leave may also be granted where special circumstances raise matters of public importance or require attention in the interests of justice: Sault Dock Co. Ltd., at para. 9.
[14] Mr. Lamba has raised no issues of public importance arising from the decisions below. Further, the appeal has not raised questions of such a nature or significance that it ought to be decided by this Court for any other reason: West Whitby Landowner’s Group Inc. v. Exlixon Energy, 2024 ONCA 910, 174 O.R. (3d) 321, at para. 13.
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