CITATION: Godard v. Godard, 2015 ONSC 3114
DIVISIONAL COURT FILE NO.: 987-14
DATE: 20150515
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: TERRI-LYNN GODARD, Applicant/Moving Party
AND:
CHRISTOPHER GODARD, Respondent/Responding Party
BEFORE: D.L. Corbett, Lederer and McEwen JJ.
COUNSEL: Guy A. Wainright, for the Applicant, Moving Party
Paul Mongenais, for the Respondent, Responding Party
ENDORSEMENT
D.L. Corbett J.:
[1] The applicant, moving party, seeks leave to appeal a $4,000 costs order made by Cornell J. in this family law proceeding.
[2] On the day of the hearing, we advised the parties that this motion ought to have been brought to a single judge and not to a panel of the Divisional Court. However, we also concluded that it would be contrary to the interests of justice to put the parties to the expense of a further motion. Each of us as single judges would have dismissed the motion for leave to appeal, and so we did for oral reasons given.
[3] We advised that we would deliver these further reasons respecting the proper forum for a motion for leave to appeal to the Divisional Court.
Requirements for Leave to Appeal to the Divisional Court
[4] Leave to appeal to the Divisional Court may be sought in three general contexts:
a. from an interlocutory order of a judge;
b. from a costs order of a judge, either within an interlocutory order, or within a final order where the jurisdiction to hear an appeal from that final order lies with the Divisional Court; and
c. an appeal from a decision-maker other than a court (“administrative appeals”).
A. Interlocutory Orders
[5] Clause 19(1)(b) of the Courts of Justice Act (“CJA”) provides:
An appeal lies to the Divisional Court from… (b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court….[^1]
B. Costs Orders
[6] Paragraph 133(b) of the CJA provides:
No appeal lies without leave of the court to which the appeal is to be taken…
(b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs.[^2]
[7] Where only costs are under appeal, the appellate jurisdiction depends on the nature of the predicate order. Thus, a costs order in an interlocutory order of a judge is appealed to the Divisional Court. A costs order in a final order of a judge is made to the appellate court that has jurisdiction to hear an appeal from the final order.[^3]
[8] In the case at bar, the predicate order of Cornell J. is interlocutory. Thus any appeal of the costs portion of that order is to the Divisional Court, with leave, pursuant to s.133(b).
C. Administrative Appeals
[9] Some administrative appeals come to the Divisional Court without leave. Some come only with leave. In either case, the governing provisions are found in the statutes creating the right of appeal rather than the CJA. For example, an appeal from the Ontario Municipal Board (“OMB”) is to the Divisional Court, with leave:
… an appeal lies from the Board to the Divisional Court, with leave of the Divisional Court, on a question of law.[^4]
Size of the Court Deciding Motions for Leave to Appeal to the Divisional Court
A. General Principles
[10] Statutory provisions requiring leave to appeal do not, themselves, specify the size of the court that is to hear the motion for leave to appeal. In respect to interlocutory orders, leave is sought “as provided in the rules of court”. In respect to costs orders, leave is sought from “the court to which the appeal is to be taken”. In respect to administrative appeals, like those from the OMB, leave is to be sought from “the Divisional Court”.
[11] We do not see in these different wordings a choice by the Legislature that motions for leave to appeal to the Divisional Court should be brought to differently constituted courts depending on whether the motion is from a judge’s interlocutory order, a costs order, or from an administrative body such as the OMB.
[12] Section 21 of the CJA provides:
(1) a proceeding in the Divisional Court shall be heard and determined by three judges sitting together,
(3) a motion in the Divisional Court shall be heard and determined by one judge, unless otherwise provided by the rules of court.
[13] Section 16 of the CJA provides:
A proceeding in the Superior Court of Justice shall be heard and determined by one judge of the Superior Court of Justice.
[14] Whether a motion for leave to appeal is “a motion in the Divisional Court” or a “proceeding in the Superior Court of Justice”, it is heard and decided by one judge “unless otherwise provided by the rules of court”. All judges of the Superior Court of Justice are judges of the Divisional Court.[^5] In the case at bar, Mr Wainwright argued that a motion for leave to appeal is not a “proceeding in the Superior Court of Justice, but rather a “motion in the Divisional Court”. He conceded that s.21(3) seems provide that a motion for leave to appeal is brought before a single judge. He argued, however, that “the rules of court” provide otherwise.