CITATION: Locking v. Armtec Infrastructure Inc., 2012 ONSC 7274
DIVISIONAL COURT FILE NO.: 545/12
DATE: 20121220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
KEITH LOCKING
Plaintiff (Appellant)
– and –
ARMTEC INFRASTRUCTURE INC., SCOTIA CAPITAL INC., TD SECURITIES INC., BMO NESBITT BURNS INC., CHARLES M. PHILLIPS, JAMES R. NEWELL, ROBERT J. WRIGHT, RON V. ADAMS, DON W. CAMERON, BRIAN W. JAMIESON, JOHN E. RICHARDSON and MICHAEL S. SKEA
Defendants (Respondents)
Earl A. Cherniak, Q.C. for Siskinds, LLP (Lawyers for the Appellant)
Paul J. Pape, for Sutts, Strosberg LLP, (Lawyers for the Respondents, Bruce Simmonds, Robert Grant and Gordon Moore)
HEARD: November 28, 2012
T. DUCHARME J.
AMENDED RULING
I. INTRODUCTION
[1] The appellant sought leave to appeal to this Court pursuant to Rule 62.02(4). Leave to appeal was granted by Grace J., but only in respect of two issues:
(a) whether the motion judge erred in his analysis of the theories and attributes (specifically, the class period, class members, and causes of actions) of the competing actions; and
(b) if so, whether the motion judge erred in his disposition of the carriage motions.
[2] The formal order which Grace J. approved and signed explicitly sets out these two issues for the appeal.
[3] The appellant sought leave to appeal in respect of several other issues. Grace J. considered each of those issues and determined that they did not warrant appellate review. No leave was granted in respect of those other issues. Therefore, no right of appeal exists in respect of those other issues for which leave was not granted.
[4] Despite the foregoing, the notice of appeal and the appellant’s factum make extensive reference to those other issues, even though they are not properly before this Court in the pending appeal. The moving parties request an order directing the appellant to deliver a revised notice of appeal and a fresh factum limited to the two issues properly before the Court, pursuant to Grace J.’s order.
II. THE LEGAL ISSUE
[5] Should this Court order the appellant to deliver a revised notice of appeal and a fresh factum limited to the two issues for which leave was granted pursuant to Grace J.’s order?
III. FACTUAL CONTEXT
[6] Two actions were commenced as proposed class actions. Both actions arise from the same events and are brought against the same primary defendant: Armtec Infrastructure Inc. (“Armtec”). The first action is brought by Bruce Simmonds, Robert Grant, and Gordon Moore in Superior Court of Justice File No. CV-11-16465 (“the Simmonds action”). Sutts, Strosberg LLP is plaintiffs’ counsel in the Simmonds action. The second action is brought by Keith Locking in the within proceeding (“the Locking action”). Siskinds LLP is plaintiff’s counsel in the Locking action.
[7] Motions were brought by the plaintiffs in both the Simmonds and Locking actions asking the Court to determine carriage of a single proposed class proceeding, in accordance with sections 12 and 13 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”). The motions were heard by Thomas J. on December 16, 2011, who determined that on balance the Simmonds action is more likely than the Locking action to advance the interests of the proposed class and fairly promote the objectives of the CPA. In an order made January 20, 2012, Thomas J. granted carriage of the proposed class proceeding to the plaintiffs in the Simmonds action, and stayed the Locking action.
[8] Mr. Locking appealed from Thomas J.’s order to the Court of Appeal. The Court of Appeal determined that it lacked jurisdiction to hear that appeal and dismissed it accordingly. Mr. Locking then moved for leave to appeal to this Court, pursuant to Rule 62.02(4). That motion was heard by Grace J. on September 7, 2012.
[9] Several issues were raised by Mr. Locking on his motion for leave to appeal. However, Grace J. determined that leave to appeal should only be granted with respect to the two issues set out in paragraph 1, supra.
[10] It is worth noting that counsel for the moving parties had to return before Grace J. to have the terms of his order settled because counsel for Mr. Locking proposed draft orders which ignored the limited grounds for which leave to appeal had been granted. Grace J. rejected those proposed drafts.
[11] Following the motion for leave before Grace J. but before the terms of his formal order had been settled, the appellant delivered a notice of appeal and a factum, both of which raise issues for which no leave to appeal was granted.
[12] Mr. Pape requested that the appellant deliver a revised notice of appeal and factum restricting argument to the two issues for which Grace J. granted leave. Mr. Cherniak declined to do so. As a result, Mr. Pape has brought this motion.
IV. ANALYSIS
[13] In resisting this motion, Mr. Cherniak made a number of submissions which I will consider in turn.
A. This Motion is Premature and the Issue Should be Decided by the Appellate Panel
[14] Mr. Cherniak submits that this motion is premature and that this court should not rule on the content of a notice of appeal or factum on an appeal that has been perfected and set down for hearing. He submits that the panel hearing the appeal is the court which should decide the issue, and its consideration of the issues should not be fettered by a single judge of the court. Indeed, at points in his oral argument he appeared to suggest that I lack the jurisdiction to grant the relief sought by Mr. Pape.
[15] Mr. Cherniak also points to Leiba v Canada (Minister of Manpower and Immigration)[^1] which he says is authority for the proposition that an appeal court has discretion to consider questions beyond those on which leave to appeal was granted. Thus, he submits it is for the panel hearing the appeal to determine whether it wishes to consider issues beyond the “theories and attributes” of the competing actions.
[16] First, there is no question that, as a single Judge of, I do have the jurisdiction pursuant to s. 21(3) of the Courts of Justice Act R.S.O. 1990, c. C.43 to hear this motion and grant the relief sought. Second, the suggestion that I would be fettering the deliberations of the Divisional Court panel is untenable. This submission ignores the clear requirement in Rule 62.02 of leave to appeal an interlocutory order of a Judge. If anything constrains the scope of the appeal before the panel it is the decision of Justice Grace granting leave on only some of the proposed grounds of appeal. But this is precisely how the appellate process is supposed to work in this context. There is no automatic right of appeal, the rules require leave and it was not granted in this case. As the Justice Taschereau put it in R. v. Paul, where leave is not granted “the right of appeal which does not exist as of right, but only by leave, never came into being”.[^2] I also note that the Divisional Court has no jurisdiction to review a refusal to grant leave to appeal from a single judge of the Superior Court.[^3] This underscores the finality of the determination of leave.
[17] As for Leiba, Mr. Cherniak relies on the following comments of Laskin J:
Notwithstanding the limited nature of the two questions on which leave to appeal was granted, it is open to this Court to raise other questions of law, and hence it could consider the breach of obligation imposed by s. 23 of the Act.[^4] [Emphasis added.]
[18] This passage is of no assistance to the appellant. All the foregoing passage from Leiba establishes is that an appeal court is free to raise other issues of law should it choose to. This does not mean that an appellant, who has been refused leave to appeal, is free to put extraneous materials before an appeal panel in the off chance that the panel might seek guidance on other issues. Should the appeal panel wish to consider other issues they can notify counsel and it is only then that these other materials should be put before them.
B. The Appeal is from the Carriage Order, Not the Reasons of Justice Thomas
[19] The appellant submits that the fact that Justice Grace determined that specific aspects of Justice Thomas’ reasons provided a basis for leave to appeal does not alter the fact that the appeal is from the carriage order itself, and not the reasons of Justice Thomas, and should not limit the jurisdiction of the appeal panel to decide the appeal in the best interests of the class sought to be certified. Therefore, in determining whether the order of Justice Thomas should stand, the panel should be entitled to consider all of the factors and issues considered by him, to determine whether he made reviewable errors.
[20] This submission again ignores that clear requirement for leave to appeal. Justice Grace carefully considered all of the proposed grounds of appeal with respect to the order of Justice Thomas and decided which grounds merited leave under Rule 62.02(4). The fact that it is the order that is under appeal does not mean that any ground of appeal relating to the order can be raised. To accept this view would render the requirement for leave under Rule 62.02(4) meaningless. Moreover, contrary to Mr. Cherniak’s submissions, there is nothing about the class action context that requires this matter be treated any differently from any other appeal from an interlocutory ruling of a single judge.
C. In Any Event, Paragraph 7(f) of the Notice of Appeal Should Not be Struck
[21] Finally, Mr. Cherniak submits that even if the court agrees with the moving parties that parts of the Appellant’s Notice of Appeal and factum should be struck, there is no basis for striking paragraph 7(f) of the Notice of Appeal. That paragraph asserts that Justice Thomas erred in reaching “the conclusion that the inadequately explained failure to name Messrs. Richardson, Wright, Jamieson and Adams as defendants in the Simmonds action, which could directly impact the recovery obtained in the actions, was not in and of itself sufficient reason to award carriage to the Locking action”.
[22] I accept this submission. Justice Grace granted leave with respect to the Justice Thomas’ analysis of the “theories and attributes” of the two actions. Grace J. defined “theories and attributes” as including “the class period, class members and causes of action.” In my view this is a sufficiently broad to encompass the composition of the named defendants in each action. Therefore paragraph 7(f) of the Notice of Appeal will not be struck.
V. CONCLUSION
[23] In the result, the Appellant is ordered to file a revised Notice of Appeal without paragraphs 7 (d), (e), (g), (h) and (i) and a revised Factum deleting all references to these grounds of appeal [at a minimum, this means deleting paragraphs 5, 8(b), 8(c), 8(d), 74 to 89, 94, 95, 97, 98 and 102.
[24] As this matter is to be heard by a panel of the Divisional Court on January 4, 2013, the appellant’s revised materials are to be served and filed no later than December 27, 2012 and the respondent’s materials are to be served and filed no later than noon on January 2, 2013.
[25] The parties are agreed that the costs of this motion should be left to the panel hearing the appeal.
Ducharme J.
Released: December 20, 2012
CITATION: Locking v. Armtec Infrastructure Inc., 2012 ONSC 7274
DIVISIONAL COURT FILE NO.: 545/12
DATE: 20121220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
KEITH LOCKING
Plaintiff (Appellant)
– and –
ARMTEC INFRASTRUCTURE INC., SCOTIA CAPITAL INC., TD SECURITIES INC., BMO NESBITT BURNS INC., CHARLES M. PHILLIPS, JAMES R. NEWELL, ROBERT J. WRIGHT, RON V. ADAMS, DON W. CAMERON, BRIAN W. JAMIESON, JOHN E. RICHARDSON and MICHAEL S. SKEA
Defendants (Respondents)
RULING
T. Ducharme J.
Released: December 20, 2012
[^1]: Leiba v Canada (Minister of Manpower and Immigration), 1972 129 (SCC), [1972] SCR 660 (SCC) [^2]: R v Paul, 1960 9 (SCC), [1960] SCR 452 (SCC), at p. 5 [^3]: Direk v. Argiris & Associates, [2009] O.J. No. 6395 (S.C.J.) [^4]: Leiba v Canada (Minister of Manpower and Immigration), supra at p. 669.