Court of Appeal for Ontario

Date: 2017-12-15 Docket: M48577 (C64473) Judge: Juriansz J.A. (In Chambers)

Parties

Between

The Ontario Provincial Police and Her Majesty the Queen Responding Parties (Respondents)

and

Assessment Direct Inc., Universal Injury Rehabilitation Centre Inc., Osler Rehabilitation Centre Inc., Metro Rehabilitation Centre Inc., Rouge Valley Rehabilitation Inc., and Publix Rehabilitation Inc. Moving Parties (Appellants)

Counsel

Richard H. Shekter, for the moving parties

John Patton, for the responding parties

Erin Dann, for the Special Referee

Reasons for Decision

[1] These are my reasons for declining to hear this motion and instead adjourning it to be heard by a panel.

[2] The motion is characterized as a motion for directions. The moving parties seek "an Order for directions with respect to the proper route of appeal in this matter". The moving parties filed their notice of appeal on October 25, 2017. Thereafter, a question arose as to whether this court had jurisdiction to hear the appeal. The appeal is from the decision of a judge of the Superior Court of Justice ruling on issues of solicitor-client privilege and litigation privilege over a variety of documents and audio files seized by the Ontario Provincial Police during the execution of Criminal Code, R.S.C. 1985, c. C-46 search warrants.

[3] The moving parties' factum sets out a detailed argument as to why this court has jurisdiction over what they submit is an appeal from the decision of a single judge of the Superior Court in a civil matter. The factum concludes "…that the Court of Appeal has the jurisdiction to hear the appeal of this matter pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43". However, the opposing view is that the proceeding before the Superior Court judge was criminal in nature. If that is the case there would be no statutory appeal to this court. The only appeal route available to the moving parties would appear to be pursuant to s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, with leave.

[4] Questions of whether an appeal lies within the jurisdiction of this court must be decided by a three-judge panel of this court. The statutory and rules-based framework that defines this court's jurisdiction, along with this court's own practice directions, indicate that a single judge has no power to decide whether an appeal is within the jurisdiction of this court.

[5] If the proceeding were civil, it would be governed by s. 134(3) of the Courts of Justice Act, which provides that "[o]n motion, a court to which an appeal is taken may, in a proper case, quash the appeal."

[6] Rule 61.15(2.2) of the Rules of Civil Procedure then provides that "[a] motion in the Court of Appeal for an order that finally determines an appeal … shall be heard and determined by a panel consisting of not fewer than three judges sitting together".

[7] Section 7.2.1 of the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, effective March 1, 2017, provides that:

A three-judge panel of the Court of Appeal holds oral hearings on the following types of motions ("panel motions"):

• motions to quash an appeal pursuant to s. 134(3) of the Courts of Justice Act …

[8] A similar framework would apply if the proceeding were criminal. The Criminal Appeal Rules, SI/93-169 do not provide a procedure for commencing a motion to quash a criminal appeal for lack of jurisdiction. However, by virtue of r. 2 of the Criminal Appeal Rules, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 generally apply to criminal appeals with necessary modifications where the criminal rules are silent.

[9] Moreover, s. 7.3.1 of the Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario, effective March 1, 2017, provides that:

A three-judge panel of the Court of Appeal holds oral hearings on the following types of motions ("panel motions")…

iii. Motions to quash an appeal on the grounds that there is no statutory right of appeal … ; and

iv. Motions for review of a decision of a single judge, if directed pursuant to s. 680 of the Criminal Code.

[10] It is clear that this court's jurisdiction can only be determined by a panel of the court. This court has said so repeatedly. For example, in RREF II BHB IV Portofino, LLC v. Portofino Corp., 2015 ONCA 906, at para. 6, this court held that "a single judge has no jurisdiction to quash an appeal and that only a panel of three judges can conclusively rule that this court does or does not have jurisdiction." See also TFP Investments Inc. (Trustee of) v. Singhai (1991), 44 O.A.C. 234, [1991] O.J. No. 323, at para. 11; and Shinder v. Shinder, 2017 ONCA 822, at para. 4.

[11] Moreover, any declaration I might make would not be binding on a panel of this court. Should I "declare" that this court has jurisdiction over the matter, a panel of this court sitting in review of my decision, or on the appeal, could take a different view and quash the appeal. On the other hand, should I "declare" that this court does not have jurisdiction over the matter, the appeal proceeding would remain as an active appeal in this court and another motion before a three-judge panel would be necessary to quash it.

[12] I recognize that there are cases in which single judges, sitting in chambers, have granted declarations as to this court's jurisdiction. With respect, my view is that such motions do not seek any actual "direction" and are inconsistent with the framework set out above.

[13] Consequently, I have adjourned the motion to be heard by a panel of this court on January 18, 2018. I have directed the parties to file two additional copies of the materials.

"R.G. Juriansz J.A."