Court File and Parties

Citation: Loftus v. Chamberlain 2017 ONSC 5751

Divisional Court File No.: 433/17 & 434/17

Date: 2017-09-27

Superior Court of Justice – Ontario

Divisional Court

Re: Martin Loftus v. Briana Chamberlain

Before: Nordheimer J.

Counsel: J. Nicoll, for the respondent, Martin Loftus A. Rogerson, for the appellant, Briana Chamberlain

Heard at Toronto: written submissions

Endorsement

[1] On September 22, 2017, Ms. Nicoll, for the respondent, wrote to the Registrar of the Divisional Court requesting that the court consider, pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, granting an order dismissing both the appellant's motion for leave to appeal and his separate appeal. On September 27, 2017, Mr. Rogerson faxed a letter, also dated September 22, 2017, to the Registrar responding to Ms. Nicoll's letter.

[2] This matter arises from an order made by Weagant J. in the Ontario Court of Justice dealing with the costs of any earlier motion in which Weagant J. granted the respondent parental access during the Christmas period. For detailed reasons, Weagant J. ordered the appellant to pay full indemnity costs to the respondent on that motion.

[3] The appellant subsequently brought a motion to extend the time for leave to appeal and for leave to appeal from the costs order made by Weagant J. That motion was heard by Backhouse J. in the Superior Court of Justice. Backhouse J. dismissed the appellant's motion in both respects. I note that there is currently a trial scheduled to commence on October 3, 2017 in the Ontario Court of Justice regarding issues relating to custody of the child.

[4] The appellant has now filed in the Divisional Court both a Notice of Appeal from the order of Backhouse J. and a motion for leave to appeal the order of Backhouse J. These concurrent filings arise apparently from uncertainty on the part of the appellant as to whether the order of Backhouse J. is final or interlocutory. For the purposes of this request under r. 2.1.01 in my view it matters not whether the order is final or interlocutory because the result is the same.

[5] The law is clear that there is no right of appeal from an order denying leave to appeal. As Cartwright J. said in Canadian Utilities Ltd. v. Canada (Deputy Minister of National Revenue, Customs and Excise - M.N.R.), 1963 88 (SCC), [1964] S.C.R. 57 at p. 63:

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.

This principle was recently affirmed, in the context of motions for leave to appeal in the Divisional court, in Nithiananthan v. Quash, [2017] O.J. No. 969 (Div. Ct.).

[6] It is clear on the record before me that Backhouse J. did not decline jurisdiction. Rather, she clearly dealt with the motion for leave to appeal on the merits.

[7] Counsel for the appellant submitted, in his letter, that if the court decided to consider the request under r. 2.1.01 that he should receive the requisite notice under r. 2.1.01(3). The fact is that counsel for the appellant had notice from the letter of counsel for the respondent regarding this request. Counsel for the respondent outlined the reasons for the request with reference to various authorities. Notwithstanding all of that, counsel for the appellant chose not to address, in his responding letter, the central issue raised. I see no reason to delay the determination of this procedural issue, especially given its potential to impact the scheduled trial, by providing yet further notice to the appellant. I am reinforced in that view by the fact that the law on this issue is crystal clear.

[8] I conclude, therefore, that there is no jurisdiction for the Divisional Court to entertain any attempt to have the order of Backhouse J., that dismissed the appellant's motion for leave to appeal, further reviewed. The applicant's motion for leave to appeal and his Notice of Appeal are therefore dismissed. There will be no order as to costs.

NORDHEIMER J.

Date: September 27, 2017