Denison Mines Ltd. v. Ontario Hydro
Denison Mines Ltd. v. Ontario Hydro [Indexed as: Denison Mines Ltd. v. Ontario Hydro]
56 O.R. (3d) 181
[2001] O.J. No. 3870
Docket Nos. M27255 and C35227
Court of Appeal for Ontario
Morden, Austin and Borins JJ.A.
October 5, 2001
Appeal -- Leave to appeal -- As general rule no appeal lies from order granting or refusing leave to appeal -- Exception to that general rule exists where submitted that judge refusing leave to appeal mistakenly declined jurisdiction.
Appeal -- Jurisdiction -- Final or interlocutory order -- Orders that finally determine issues raised in application are final orders -- Rule 14.01(3) of Rules of Civil Procedure does not apply to application for leave to appeal as appeal not "proceeding" within meaning of rule 14.01 -- Order refusing leave to appeal under s. 45 of Arbitration Act is final -- Arbitration Act, 1991, S.O. 1991, c. 17 -- Ontario Rules of Civil Procedure, rule 14.01(3).
Arbitration -- Appeal -- Order refusing leave to appeal under s. 45 of Arbitration Act is final and not interlocutory -- Appeal from order lies to Court of Appeal -- Arbitration Act, 1991, S.O. 1991, c. 17.
An application by the appellant under s. 45(1) of the Arbitration Act, 1991 for leave to appeal an arbitration award was dismissed. The appellant appealed the order dismissing its application. The respondent brought a motion to quash the appeal on the ground that, because the order in question was an interlocutory one, the Court of Appeal did not have jurisdiction.
Held, the motion should be dismissed.
As a general rule, no appeal lies from an order granting or refusing leave to appeal. However, there is an exception to that general rule where it is submitted that the judge refusing leave to appeal mistakenly declined jurisdiction. That exception applied in this case, as the appellant argued that the application judge erred in concluding that the parties had contracted out of a right of appeal, and mistakenly declined jurisdiction. The parties did not argue the merits of the application before the application judge.
Orders that finally determine the issues raised in an application are final orders. Rule 14.01(3) of the Ontario Rules of Civil Procedure, which provides that where leave to commence a proceeding is required it shall be obtained by motion, does not apply to appeals as an appeal is not a "proceeding" within the meaning of rule 14.01(3).
If that conclusion was wrong and the order in question should be considered to have been made on motion, an order refusing leave to appeal under s. 45 of the Arbitration Act, 1991 is final, not interlocutory. Accordingly, it did not make a difference whether the matter was put before the Superior Court by way of application or motion.
MOTION to quash an appeal from an order dismissing an application under s. 45(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 for leave to appeal an arbitration award.
Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, [1932] 4 D.L.R. 580 (C.A.), apld Milton (Town) v. Kalmoni Establishments Inc. (1996), 1996 1534 (ON CA), 31 O.R. (3d) 157, 4 C.P.C. (4th) 45 (C.A.), consd Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 1996 413 (ON CA), 29 O.R. (3d) 612, 135 D.L.R. (4th) 471, 49 C.P.C. (3d) 262 (C.A.), distd Other cases referred to Automatic Systems Inc. v. Bracknell Corp. (1994), 1994 1871 (ON CA), 18 O.R. (3d) 257, 113 D.L.R. (4th) 449, 12 B.L.R. (2d) 132, 27 C.P.C. (3d) 56 (C.A.), revg (1993), 1993 5569 (ON SC), 110 D.L.R. (4th) 390, 12 B.L.R. (2d) 113 (Ont. Gen. Div.); Automatic Systems Inc v. E.S. Fox Ltd., [1994] O.J. No. 193 (C.A.); Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 2403 (ON CA), 19 O.R. (3d) 97, 117 D.L.R. (4th) 373, 34 C.P.C. (3d) 76 (C.A.); Canadian Express Ltd. v. Blair (1991), 1991 7172 (ON SC), 6 O.R. (3d) 212, 5 C.P.C. (3d) 161 (Div. Ct.); Canadian Utilities Ltd. v. Deputy Minister of National Revenue, 1963 88 (SCC), [1964] S.C.R. 57, 41 D.L.R. (2d) 429, 63 D.T.C. 1285; Ernewein v. Canada (Minister of Employment and Immigration) (1979), 1979 185 (SCC), [1980] 1 S.C.R. 639, 103 D.L.R. (3d) 1, 30 N.R. 316, 14 C.P.C. 264; Industrial Acceptance Corp. v. Canada Permanent Trust Co., 1931 67 (SCC), [1931] S.C.R. 652, [1932] 1 D.L.R. 287, 13 C.B.R. 144; Kay v. Briggs (1889), 22 Q.B.D. 343, 58 L.J.Q.B. 182, 60 L.T. 775, 37 W.R. 291, 5 T.L.R. 256 (C.A.); Khalil v. United Investment Services Ltd. (1975), 1975 490 (ON SC), 11 O.R. (2d) 707 (Div. Ct.); Lane v. Esdaile, [1891] A.C. 210, 64 L.T. 666, 40 W.R. 65, 60 L.J. Ch. 644 (H.L.); Leo Alarie and Sons Ltd. v. Ontario (Minister of Natural Resources) (2000), 2000 4866 (ON CA), 48 O.R. (3d) 204, 185 D.L.R. (4th) 211 (C.A.); MacDonald v. Montreal (City), 1986 65 (SCC), [1986] 1 S.C.R. 460, 27 D.L.R. (4th) 321, 67 N.R. 1, 25 C.C.C. (3d) 481; MacKay v. Queen Elizabeth Hospital (1989), 68 O.R. (2d) 92, 40 C.P.C. (2d) 307 (Div. Ct.), affg (1989), 1989 4085 (ON SC), 68 O.R. (2d) 90, 32 O.A.C. 253, 32 C.P.C. (2d) 259 (H.C.J.); Osolsky v. Schwartz (1929), 37 O.W.N. 121 (C.A.); Primex Investments Ltd. v. Northwest Sports Enterprises Ltd. (1995), 1995 2383 (BC CA), 23 B.C.L.R. (3d) 251, 46 C.P.C. (3d) 385 (C.A.); Standard Industries Ltd. v. Ontario Region No. 13 (Assessment Commissioner) (1993), 15 C.P.C. (3d) 19 (Ont. Div. Ct.) Statutes referred to Arbitration Act , 1991, S.O. 1991, c. 17, ss. 1, 45(1), 49 Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b) Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 96(1) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.03, 14, 14.01(3), 14.05(3), 38.01, 61, 61.03, 62, 68 Authorities referred to Bennion, F.A.R., Statutory Interpretation: A Code, 3rd ed. (London: Butterworths, 1997) Holmested, G.S., and G.A. Gale, The Judicature Act of Ontario and Rules of Practice (Toronto: Carswell, 1983) Sopinka, J., and M.A. Gelowitz, The Conduct of an Appeal, 2nd ed. (Toronto, Butterworths, 2000) Watson, G.D. and C. Perkins, Holmested and Watson: Ontario Civil Procedure (Toronto: Carswell, 1984- )
Joseph M. Steiner and Joseph A. Starkman, for moving party, respondent in appeal. David Stockwood, Q.C., and Johanna Braden, for responding party, appellant in appeal.
The judgment of the court was delivered by
1MORDEN J.A.: -- On September 29, 2000, Ellen Macdonald J. dismissed an application by Denison Mines Limited under s. 45(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 for leave to appeal from an award of an arbitration tribunal dated November 23, 1999. Ontario Hydro was the respondent in the application. Denison commenced an appeal to this court from the order dismissing its application. What is before us now is a motion by Ontario Hydro to quash the appeal on the ground that, because the order in question is an interlocutory order, this court does not have jurisdiction. It relies on the decision of this court in Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 1996 413 (ON CA), 29 O.R. (3d) 612, 135 D.L.R. (4th) 471. As I shall indicate, shortly, there are issues in addition to the final/interlocutory question which must be considered on this motion.
2The most relevant statutory provisions are:
Arbitration Act, 1991, ss. 45(1) and 49
45(1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,
(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and
(b) determination of the question of law at issue will significantly affect the rights of the parties.
- An appeal from the court's decision in an appeal of an award, an application to set aside an award or an application for a declaration of invalidity may be made to the Court of Appeal, with leave of that court.
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b)
6(1) An appeal lies to the Court of Appeal from,
(b) a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19(1)(a) or an order from which an appeal lies to the Divisional Court under another Act.
3By reason of the definition in s. 1 of the Arbitration Act, 1991, the "court" referred to in ss. 45(1) and 49 of that Act is the Superior Court of Justice.
4As an aid to following my reasons, I now set forth my responses to the issues which must be considered on this motion. First, I conclude that the proposed appeal falls within an exception to the general rule that no appeal lies from an order granting or refusing leave to appeal. This exception is applicable where it is submitted that the judge refusing leave to appeal mistakenly declined jurisdiction. Second, I conclude that the order is a final one because it was granted on an application. Third, I conclude that we should not treat the matter as having proceeded before Macdonald J. by way of motion. Finally, I express the view that, if I am wrong in my third conclusion, the order would also be a final one if made on motion. Accordingly, I would dismiss the motion.
Is the Order Appealable at All?
5Hillmond Investments Ltd. v. C.I.B.C., supra, canvassed a series of cases, all of which concluded that an order by an intermediate court refusing leave to appeal is not appealable: Kay v. Briggs (1889), 22 Q.B.D. 343, 58 L.J.Q.B. 182 (C.A.); Lane v. Esdaile, [1891] A.C. 210, 64 L.T. 666 (H.L.); Industrial Acceptance Corp. v. Canada Permanent Trust Co., 1931 67 (SCC), [1931] S.C.R. 652, [1932] 1 D.L.R. 287; Canadian Utilities Ltd. v. Deputy Minister of National Revenue, 1963 88 (SCC), [1964] S.C.R. 57, 41 D.L.R. (2d) 429 and Ernewein v. Canada (Minister of Employment and Immigration) (1979), 1979 185 (SCC), [1980] 1 S.C.R. 639, 103 D.L.R. (3d) 1. Reference may also be made to Holmested and Gale, The Judicature Act of Ontario and Rules of Practice (Toronto: Carswell, 1983) at pp. 2284.28(2)-2284.29 for additional decisions affirming this principle. See also Bennion, Statutory Interpretation: A Code, 3rd ed. (London: Butterworths, 1997) at pp. 74 and 98. Hillmond also observed at pp. 623-24 O.R. that MacDonald v. Montreal (City), 1986 65 (SCC), [1986] 1 S.C.R. 460, 27 D.L.R. (4th) 321, which departed from this principle, turned on its being concerned with a leave to appeal provision and with the principle that the jurisdiction of the Supreme Court of Canada, as a national court of last resort, should be unfettered.
6The non-appealability of decisions refusing or granting leave to appeal is the general rule and, subject to the exception to which I shall refer shortly, it should, as Hillmond held, be applicable to appeals from orders made under s. 45(1) of the Arbitration Act, 1991. The rule flows from the strong implication that, notwithstanding the wording of s. 6(1)(b) of the Courts of Justice Act, a general statute, no appeal is intended from an order made refusing or granting leave to appeal. Any other conclusion would defeat the purpose of s. 45(1), which is to limit appellate recourse to the courts in arbitration matters.
7This strong negative implication is reinforced by s. 49 of the Arbitration Act, 1991, which provides for an appeal to the Court of Appeal from a superior court judge's decision in an appeal of an award, but only with leave of the Court of Appeal. It would be incongruous to attribute to the legislature an intention that there be appeals, as of right, from decisions on leave applications under s. 45(1) when no such appeal is provided for with respect to decisions on what may be called the main issue, the correctness of the arbitral decision.
8As I have said, the non-appealability of orders refusing leave is the general rule. As Hillmond sets forth on pp. 624-25 O.R., the courts have engrafted onto this general rule an exception which is applicable where the judge mistakenly declines jurisdiction. Hillmond referred to and quoted the following passage from the reasons of Cartwright J. for the Supreme Court of Canada in Canadian Utilities Ltd. v. Deputy Minister of National Revenue, supra, at p. 63 S.C.R.:
It appears to me to have been consistently held in our courts and in the courts of England that where a statute grants a right of appeal conditionally upon leave to appeal being granted by a specified tribunal there is no appeal from the decision of that tribunal to refuse leave, provided that the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application.
(Emphasis added)
9Denison relies upon this exception in the present case. It submits that Macdonald J. erred in concluding that the arbitration agreement dealt with appeals on questions of law (s. 45(1) of the Arbitration Act, 1991), that is, that the parties had "contracted out" of a right of appeal and, accordingly, erred in declining jurisdiction.
10I appreciate that in many cases the meaning of "jurisdiction" can be fraught with difficulty. In the present case, however, I think that the principle stated by Cartwright J. can be applied with some degree of confidence. He distinguished between declining jurisdiction and reaching a decision on the merits of the application. In the present case, the parties did not argue the merits of the application before Macdonald J. By agreement they argued whether or not Macdonald J. had jurisdiction to grant leave to appeal. If she had decided that she had jurisdiction, they would have continued the hearing of the application on the merits. I think that the exception applies.
11To give effect to this exception is not to recognize a right of appeal from the reasons as opposed to the order (contrary to a basic principle relating to appeals: see, for example, Canadian Express Ltd. v. Blair (1991), 1991 7172 (ON SC), 6 O.R. (3d) 212, 5 C.P.C. (3d) 161 (Div. Ct.)) but, rather, from the order itself on the ground that the reasons show (at least in Denison's submission) error respecting the court's jurisdiction to deal with the merits.
Is the Order Final or Interlocutory?
12Hillmond held that an order dismissing a motion for leave to appeal under s. 45(1) of the Arbitration Act, 1991 is interlocutory. There is a distinction between the present case and Hillmond in that, in this case, Denison sought relief in the form of an application and in Hillmond, as the documents in the appeal book in that appeal show, the relief was sought by motion. The leading authority in Ontario on the final/ interlocutory distinction is Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, [1932] 4 D.L.R. 580 (C.A.) and decisions of this court have applied the reasoning in Hendrickson v. Kallio to conclude that orders that finally determine the issues raised in an application are final orders: Automatic Systems Inc. v. Bracknell Corp. (1994), 1994 1871 (ON CA), 18 O.R. (3d) 257, 113 D.L.R. (4th) 449 (C.A.); Automatic Systems Inc. v. E.S. Fox Ltd., [1994] O.J. No. 193 (C.A.); Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 2403 (ON CA), 19 O.R. (3d) 97, 117 D.L.R. (4th) 373 (C.A.) (and the decisions referred to in it); Leo Alarie and Sons Ltd. v. Ontario (Minister of Natural Resources) (2000), 2000 4866 (ON CA), 48 O.R. (3d) 204, 185 D.L.R. (4th) 211 (C.A.).
13On the argument before us, Ontario Hydro referred to rule 14.01(3) in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides:
14.01(3) Where leave to commence a proceeding is required it shall be obtained by motion.
Ontario Hydro acknowledged that it did not question the use of the application procedure before Macdonald J. or refer to rule 14.01(3), but submitted that it did not make sense that the resolution of this issue should turn on the distinction between motions and applications. From a policy point of view I agree with this submission (accepting, for the purposes of addressing the submission, that orders relating to leave made on motion are interlocutory) but the question which must be decided is the proper interpretation and application of rule 14.01(3) to the facts of this case. I would be inclined to treat the matter as having been proceeded with by way of motion before Macdonald J. if I thought that the case was clearly covered by rule 14.01(3). See Holmested and Watson: Ontario Civil Procedure (Toronto: Carswell, 1984- ) at p. 62-28.
14The question is whether an appeal is a "proceeding" within the meaning of this word in rule 14.01(3). Rule 1.03 provides that a "proceeding" means "an action or an application" and that a "motion" means "a motion in a proceeding or an intended proceeding". According to the defined meanings it is difficult to say that an "appeal" is a proceeding within the meaning of rule 14.01(3). An appeal is a step in a proceeding. If an appeal was intended within the purview of the rule, I think that it would have used different wording. The subject of appeals and leave to appeal is dealt with in Rules 61 and 62 and the commencement of proceeding is dealt with in Rule 14.
15As far as the authority for bringing the matter before the court by way of application is concerned, it is clear that this is provided for by rule 14.05(3)(h) because this is a "matter where it is unlikely that there will be any material facts in dispute". One difference between rule 14.05(3)(h) and rule 14.01(3) is that the former is an enabling provision, while the latter (where, of course, it is applicable) is a mandatory provision.
16Ontario Hydro has referred to Milton (Town) v. Kalmoni Establishments Inc. (1996), 1996 1534 (ON CA), 31 O.R. (3d) 157, 4 C.P.C. (4th) 45 (C.A.) in support of its position, in particular the following passage on p. 159 O.R.:
With respect, I think that the legal step taken to obtain leave to appeal to the Divisional Court is a motion, as defined in the Rules of Civil Procedure and, clearly, not an application as defined in those rules, as appears to be suggested by the Divisional Court. Rule 1.03 defines "motion" as meaning "a motion in a proceeding or an intended proceeding" (emphasis added). The intended proceeding which is relevant in the present context, while it may not be, strictly speaking, a "proceeding" as defined in the rules ("an action or application"), is the intended appeal to the Divisional Court: cf rule 14.01(3) which provides: "Where leave to commence a proceeding is required, it shall be obtained by motion."
17This passage was concerned with what was said by the Divisional Court in the earlier case of Standard Industries Ltd. v. Ontario Region No. 13 (Assessment Commissioner) (1993), 15 C.P.C. (3d) 19. The Divisional Court in that case held that the procedure to be followed to obtain leave to appeal to the Divisional Court under s. 96(1) of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 was an application and not a motion. This court disagreed and said that it was a motion. While it is true that the court referred to rule 14.01(3), this was by analogy ("cf"). As the court noted on p. 160 O.R., rule 61.03 clearly contemplates that where an appeal to the Divisional Court requires the leave of that court, the procedure is by way of motion. I must say, in view of the matter being covered by rule 61.03, that it was not helpful to refer to rule 14.01(3).
18A further observation may be made about Standard Industries that was not made in Milton. Unlike judges of the Superior Court sitting alone, the Divisional Court does not hear ordinary applications (see rule 38.01). It does, of course, hear applications for judicial review (Rule 68). In fact, in Standard Industries, the order in question, refusing leave to appeal, had been made on motion.
19Accordingly, I do not think that Milton supports Ontario Hydro's position.
20If I am wrong and the order should be considered to have been made on motion, I should say something further on the final/interlocutory question. I say, with great respect, that I do not think that the judgments of the Supreme Court of Canada referred to in Hillmond support the conclusion that an order refusing leave under s. 45 of the Arbitration Act is interlocutory. The court did not apply the Hendrickson v. Kallio test to determine the question and it may be noted that in Hendrickson, Middleton J.A. observed at p. 679 O.R. that judgments of the Supreme Court of Canada on its jurisdiction depend upon a statute widely different from that in question before him. Further, as noted in Sopinka and Gelowitz, The Conduct of an Appeal, 2nd ed. (Toronto: Butterworths, 2000) at pp. 25-26, under the current legislation relating to appeals to the Supreme Court of Canada, the distinction between final and interlocutory, on the matter of jurisdiction, is no longer relevant.
21Under the Ontario approach it appears that the decision denying leave to appeal in this case is one that finally disposes of the moving party's substantive right to relief in the court and is hence, a final order. See Holmested and Watson: Ontario Civil Procedure at p. 62-17 and Osolsky v. Schwartz (1929), 37 O.W.N. 121 (C.A.), Khalil v. United Investment Services Ltd. (1975), 1975 490 (ON SC), 11 O.R. (2d) 707 (Div. Ct.), MacKay v. Queen Elizabeth Hospital (1989), 1989 4085 (ON SC), 68 O.R. (2d) 90, 32 C.P.C. (2d) 259 (H.C.J.) [affd (1989), 68 O.R. (2d) 92, 40 C.P.C. (2d) 307 (Div. Ct.)] and Primex Investments Ltd. v. Northwest Sports Enterprises Ltd. (1995), 1995 2383 (BC CA), 46 C.P.C. (3d) 385, 23 B.C.L.R. (3d) 251 (C.A.) at p. 390 C.P.C. Accordingly, in my view, it does not make a difference whether the matter was put before the Superior Court by way of application or motion.
22For the reasons I have given, I would dismiss this motion with costs.
Motion dismissed.
