Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211222 DOCKET: M52803 (C69439)

Simmons, Pepall and Roberts JJ.A.

BETWEEN

SS & C Technologies Canada Corp. Applicant (Respondent/Responding Party)

and

The Bank of New York Mellon Corporation and CIBC Mellon Global Securities Services Company Respondents (Appellants/Moving Parties)

Counsel: J. Thomas Curry, Christopher Yung, Eli Mogil and Erin S. Chesney, for the appellants/moving parties Ren Bucholz and Catherine Fan, for the respondent/responding party

Heard: December 8, 2021

Reasons for Decision

[1] This is a motion to review the September 3, 2021 order of a single motion judge of this court. The motion judge dismissed the moving parties’ motion for directions concerning their appeal. Specifically, the motion judge dismissed the moving parties’ request that their appeal be expedited and that they be relieved from the filing of a copy of the application judge’s order on liability.

[2] On April 14, 2021, the application judge determined liability issues in favour of the responding party (“the liability order”). He directed that there be a trial on the issue of damages, which is now scheduled for May 18 to 27 and June 21 to 24, 2022 (“the damages trial”), and he suspended any appeal periods until he released his reasons on damages. Subsequently, he dismissed a motion by the moving parties to adjourn the damages trial until after the appeal from the liability order and refused to sign the draft order until the disposition of the damages trial. The moving parties have appealed the liability order and have not sought leave to appeal the other orders.

[3] The motion judge declined to expedite the appeal to be heard before the damages trial. She also concluded that it was not necessary to consider the moving parties’ request that they be relieved from the filing of a copy of the application judge’s liability order.

[4] The moving parties submit that the motion judge erred by effectively ordering a stay of their appeal when there was no motion for this relief before her. They argue that as their appeal could dispose of most if not all of the issues to be determined on the damages trial, the motion judge’s decision was unreasonable because the justice of the case requires that their appeal be heard before the damages trial.

[5] We do not accept these submissions. We see no factual or legal error that would warrant intervention with the motion judge’s decision not to expedite the appeal.

[6] It is well established that a panel review of a motion judge’s decision is not a de novo determination: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9. The reviewing panel asks whether the motion judge erred in principle in disposing of the motion: see Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21. Discretionary decisions of a single judge are, absent legal error or misapprehension of evidence, entitled to deference: Machado, at para. 9; Yaiguaje, at para. 20.

[7] The motion judge’s refusal to expedite the appeal was squarely within her discretion. The motion judge considered and applied the overarching principle of whether it was in the interests of justice to expedite the appeal. She correctly balanced all the relevant factors.

[8] Effectively, the moving parties are asking this court to reweigh the factors considered by the motion judge and to redo her analysis afresh. Absent error, which is not present here, that is not our task.

[9] As is clear from the motion judge’s order, she did not stay the hearing of the appeal from the liability order nor did she make any order respecting the filing of the formal liability order. Apart from the absence of a signed order, there is no impediment to the moving parties perfecting and continuing with their appeal. The parties agree that the liability order was a final order. As a result, we would vary the motion judge’s order to relieve the moving parties from the obligation of filing a copy of the formal liability order in order to perfect their appeal.

[10] That said, it would be most desirable if a copy of the formal liability order were filed prior to the hearing of the appeal. To that end, we encourage the parties to agree on the form of the liability order prior to the hearing of the appeal.

[11] It will be up to the moving parties to perfect their appeal and apply for an appeal date through the scheduling office in the ordinary course. However, nothing in our order alters the application judge’s order dismissing the moving parties’ motion to adjourn the damages trial nor the present scheduling of the damages trial.

[12] The motion is otherwise dismissed.

[13] As the results of this motion are mixed, we fix costs in the agreed upon amount of $5,000, inclusive of disbursements and all applicable taxes, and order that they be awarded to the successful party on the appeal.

“Janet Simmons J.A.”

“S.E. Pepall J.A.”

“L.B. Roberts J.A.”