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Courts - Executive Legal Officer (ELO). Porter v. Kik
In Porter v. Kik (Ont CA, 2026) the Ontario Court of Appeal considered an appeal route in family law, here where the issue involved the Executive Legal Officer of this court:[1] An order was made by a judge of the Family Court under only the Family Law Rules, O. Reg. 114/99. The order was appealed to this court. However, pursuant to s. 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C 43 (the “CJA”), the appeal properly lay to the Divisional Court. Consequently, the appeal was quashed for lack of jurisdiction.
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[6] By letter to counsel for both parties dated May 28, 2025, the office of the Executive Legal Officer of this court alerted the appellant to the potential application of s. 19(1)(a.1) of the CJA and the possibility that the appeal might fall within the jurisdiction of the Divisional Court. Section 19(1)(a.1) reads as follows:19 (1) An appeal lies to the Divisional Court from,
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(a.1) a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario; ....
[10] Pursuant to s. 19(1)(a.1) of the CJA, an appeal lies to the Divisional Court from a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario. The December 2024 Order was made at the Kitchener Superior Court of Justice, by a judge of the Family Court, and it was made pursuant to provincial legislation only, namely, the Family Law Rules. Clearly, s. 19(1)(a.1) governed and the appeal lay to the Divisional Court, not to this court.
[11] I would observe the following. In a situation such as that which occurred here, there are two options which could move the matter along, rather than allowing it to languish. First, if the parties agree that the appeal should be transferred to the Divisional Court, they can file a consent order in this court, without the necessity of personal attendance, and if appropriate, the order will be issued by a judge of this court. Second, it would be open to a respondent to bring a motion in this court to quash the appeal for lack of jurisdiction. Such a motion would be scheduled to be heard at an early date: see s. 7.2.5 of the “Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario” (March 1, 2017). . 9383859 Canada Ltd. v. The Court of Appeal for Ontario
In 9383859 Canada Ltd. v. The Court of Appeal for Ontario (Div Court, 2023) the Divisional Court considered a R2.1 frivolous and vexatious issue, here where the applicant sought to JR "a decision by the Executive Legal Officer (“ELO”) of the Court of Appeal delisting the applicant’s appeal". In these quotes the Divisional Court sets out what is essentially the Court of Appeal's defence to it's administrative action of de-listing the appeal (which was grounded in non-compliance with a security for costs order under R56.05), particularly in para 13:[1] On August 25, 2023, Sandeep Singh, on behalf of the applicant, filed an application for judicial review in this Court. In his email accompanying the notice, Mr. Singh accurately advised the Court that the applicant sought to review a decision by the Executive Legal Officer (“ELO”) of the Court of Appeal delisting the applicant’s appeal in 9383859 Canada Ltd. v. Navartnam, Kubeskaram et al., COA-22-CV-0453.
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[8] In the notice of application for judicial review and the applicant’s factum, the primary complaint of the applicant is that the ELO delisted the appeal in the absence of a judge’s order. As the factum states, the ELO “violated the Rules of Civil Procedure and deny [sic] the constitutional rights of the Applicant, by de-listing the Appeal of the Applicant, without an Order from a Honourable Judge.”
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[10] First, decisions of the Court of Appeal are not subject to judicial review by the Divisional Court. The Court of Appeal is a “superior court of record”: Courts of Justice Act, RSO 1990, c. C.43, ss. 2(1). Any review of its conduct must be by way of appeal or a motion to reconsider, if available. The Divisional Court, over which the Court of Appeal exercises appellate jurisdiction, has no jurisdiction to judicially review decisions of a “superior court of record”, but only those of an “inferior court”: Judicial Review Procedure Act, RSO 1990, c. J.1, s. 1.
[11] Second, the applicant provides no authority in support of the proposition that the ELO does not have the power to “delist” and that only a judge can do so. This is not surprising as the law goes the other way. As was observed in Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 SCR 673, at paras. 47-49, the “assignment of judges, sittings of the court, and court lists” is part of the administration of the court controlled by judges, not the executive branch of government. Indeed, control over lists is seen as a basic or “minimum requirement” of the institutional aspect of judicial independence.
[12] This control over lists by the judiciary is also found in s. 75(1) of the Courts of Justice Act. Section s. 76 of the Courts of Justice Act then provides that court staff “shall act at the direction of the chief justice of the court.” There is no rule of court requiring a judge’s order to list or delist an appeal for hearing. Scheduling of matters is usually delegated to administrative staff who may list and delist cases. If a litigant takes issue with the listing or delisting of their case by an administrator, their remedy is to seek direction from a judge of the court in which the proceeding is taking place. The applicant has not done so. The application to this court, therefore, is an inappropriate and collateral attack on proceedings that are ongoing in the Court of Appeal.
[13] Third, the decision to delist in this case follows directly from an order of the Court of Appeal, as the applicant was ordered to post security for costs by March 8, 2023. Rule 56.05 of the Rules of Civil Procedure provides that, until security for costs is posted, the party required to post those costs is not entitled to take any further step in the proceeding other than to appeal the order. The applicant appealed the order unsuccessfully to a panel and has now sought leave to appeal to the Supreme Court of Canada. However, his application for leave does not stay Miller J.A.’s order. Accordingly, as the applicant cannot proceed with the appeal because it has failed to comply with a court order, the matter was delisted. Viewed this way, the ELO’s action delisting the appeal was required in order to comply with Justice Miller’s order.
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