For a party wishing to appeal the decision of an Ontario judge or master, determining the appropriate Court to appeal to is occasionally not a straightforward matter. In some previous cases where there has been uncertainty between the parties as to the appropriate appeal route, single judges of appellate courts have been willing to provide direction to the parties on this question following a short chambers appearance.
In Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986 (“Assessment Direct”), Juriansz J.A. held that this practice is improper and a motion to a full three-member panel of the Court of Appeal is required in order to obtain a decision on the Court’s jurisdiction over a given appeal. It appears that parties will no longer be able to rely on the motion for directions shortcut to obtain an answer to the jurisdiction question.
Background: Jurisdictional Uncertainty
Assessment Direct involved the appeal of a Superior Court of Justice decision regarding privilege over documents and audio files seized by the Ontario Provincial Police during the execution of a Criminal Code search warrant. The parties disagreed with respect to whether the proceeding was civil in nature (with an appeal route to the Ontario Court of Appeal per section 6(1)(b) of the Courts of Justice Act) or criminal in nature (with the only appeal route being straight to the Supreme Court of Canada per section 40(1) of the Supreme Court Act).
Decision: Not So Fast
The appellants brought a motion for directions before Juriansz J.A. of the Ontario Court of Appeal sitting in chambers. While Juriansz J.A. recognized that single judges sitting in chambers had decided similar issues in the past, His Honour refused and referred the motion to a full panel of the Court. His Honour held that these motions were effectively requests for a declaration that the Court did (or did not) have jurisdiction over the appeal and an order that the appeal should not (or should) be quashed. His Honour noted that the Court of Appeal Practice Directions governing civil appeals and criminal appeals provides that only three-judge panels may hear motions to quash an appeal, including due to a lack of jurisdiction. Additionally, Rule 61.15(2.2) of the Rules of Civil Procedure provides that an order that “finally determines an appeal” may only be granted by a full panel of three judges or more.
While much of the decision is couched in terms of stopping a practice that the Rules do not permit, the decision of Juriansz J.A. appears to be directed more towards prohibiting a practice that has the potential to cause confusion and re-litigation. The Rules provide Ontario judges with broad discretion to control their own processes and provide direction to the parties where appropriate. The motion as pleaded appears to have been solely for directions, not an order quashing the appeal on jurisdictional grounds, and thus was technically within the bailiwick of a single judge sitting in chambers.
However, practically an order giving directions would only be effective if it was honoured by both parties. Either party would have the ability to appeal the decision to a full panel of the Court of Appeal in any event since it was issued by a single judge. Furthermore, the order giving directions would not have the effect of dismissing the appeal and a further motion to a three-member panel would be required to quash the appeal if the opposing party did not agree to the appeal being discontinued in that forum.
Takeaway: Parties Should Bring Motion to a Full Panel at Early Stage
Following the decision of Juriansz J.A. in Assessment Direct, parties should no longer seek to use the shortcut of a motion for directions to determine the issue of whether an appeal was brought in the appropriate forum. The parties must proceed to a hearing before a full three-member panel. Fortunately, the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario provides that jurisdiction motions will be heard at an early stage of the appeal and the parties are not required to wait until they can proceed with a full appeal on the merits in order to get an answer to the jurisdiction question.
Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986
Date of Decision: December 15, 2017
 Courts of Justice Act, RSO 1990, c C.43, s. 7(5).
 Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, s. 7.2.5.