Sigesmund v. The Royal College of Dental Surgeons of Ontario

81 O.R. (3d) 659

Court of Appeal for Ontario,

Borins, Juriansz and LaForme JJ.A.

August 21, 2006

Civil procedure -- Appeals -- Cross-appeals -- Divisional Court allowing dentist's appeal from conviction on four of seven counts of professional misconduct but affirming convictions on three other counts -- College obtaining leave to appeal and seeking to restore convictions on all counts -- Dentist cross-appealing -- Rule 61.07(1.1)(b) of Rules of Civil Procedure entitling dentist to bring cross-appeal without leave because leave to appeal had been granted to College -- Rule 61.07 not requiring that respondent obtain leave to appeal if cross-appeal relates to different issue or different part of order for which leave to appeal was granted -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.07.

[page660]

The Discipline Committee of the appellant College found the respondent guilty on seven counts of professional misconduct. The respondent's appeal to the Divisional Court was allowed in respect of four of the counts, but dismissed in respect of the remaining counts. The College sought to restore the convictions on all counts, and was granted leave to appeal. The respondent cross-appealed. The College brought a motion to quash the cross-appeal, submitting that the respondent was required to obtain leave to cross-appeal.

Held, the motion should be dismissed.

Rule 61.07(1.1)(b) of the Rules of Civil Procedure expressly states that leave to appeal is not required to serve a notice of cross-appeal if leave to appeal has been granted. Nowhere in rule 61.07 does it state, as the College contended, that a respondent is required to obtain leave to appeal if the cross- appeal relates to a different issue or a different part of the order for which leave to appeal has been granted.

MOTION to quash the cross-appeal.

Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(a), 133(b) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.03, 61, 61.03.1, 61.07, 61.07(1.1), (1.2)

Margaret L. Waddell, for moving party. Neil M. Abramson, for responding party.

The judgment of the court was delivered by

[1] BORINS J.A.: -- On August 14, 2006, we dismissed this motion with reasons to follow. These are the reasons.

[2] Dr. Sigesmund was charged with seven counts of professional misconduct by the Royal College of Dental Surgeons of Ontario (the "College"). The Discipline Committee found him guilty on all counts. Dr. Sigesmund's appeal to the Divisional Court was allowed in respect to four of the counts, but was dismissed in respect to the remaining counts.

[3] Pursuant to s. 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("C.J.A.") and rule 61.03.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on February 13, 2006 this court granted the College leave to appeal the order of the Divisional Court. On February 15, 2006, the College served Dr. Sigesmund with a notice of appeal from the Divisional Court's order. Pursuant to rule 61.07, on March 2, 2006 Dr. Sigesmund served the College with a notice of cross-appeal from the order of the Divisional Court. For the purpose of this motion, I find it unnecessary to enumerate the precise grounds of appeal and cross-appeal. It is sufficient to recognize the purpose of the appeal and the cross-appeal. [page661] The College seeks to restore the Discipline Committee's conviction of Dr. Sigesmund on all counts of professional misconduct. Dr. Sigesmund seeks to set aside the conviction on all counts and to clear his professional name.

[4] The College has moved for an order to quash Dr. Sigesmund's cross-appeal. It contends that as the cross-appeal is from an order of the Divisional Court, s. 6(1)(a) of the C.J.A. requires that he obtain leave to appeal to this court. For the reasons that follow, I do not agree.

[5] It is helpful to set out s. 6(1)(a) of the C.J.A. as well as rule 61.07 that applies to cross-appeals. Section 6(1)(a) is part of a general provision that governs the jurisdiction of the Court of Appeal and reads as follows:

6(1) An appeal lies to the Court of Appeal from,

(a) an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal as provided in the rules of court; . . .

[6] Rule 61.07 states:

Cross-Appeals

61.07(1) A respondent who,

(a) seeks to set aside or vary the order appealed from; or

(b) will seek, if the appeal is allowed in whole or in part, other relief of a different disposition that the order appealed from,

shall, within fifteen days after service of the notice of appeal, serve a notice of cross-appeal (Form 61E) on all parties whose interests may be affected by the cross-appeal and on any person entitled by statute to be heard on the appeal, stating the relief sought and the grounds of the cross-appeal.

(1.1) A respondent may, subject to subrule (1.2), serve a notice of cross-appeal without obtaining leave to appeal for the cross-appeal if,

(a) there is an appeal as of right; or

(b) leave to appeal has been granted.

(1.2) The respondent shall obtain leave to appeal in the manner provided by subrule 61.03(8) or 61.03.1(18), as the case may be, if the cross-appeal is taken under,

(a) clause 133(b) of the Courts of Justice Act; or

(b) another statute that requires leave for an appeal.

(2) The notice of cross-appeal, with proof of service, shall be filed in the office of the Registrar within ten days after service.

(3) Where a respondent has not delivered a notice of cross- appeal, no cross-appeal may be heard except with the leave of the court hearing the appeal. [page662]

[7] As I understand the position of the College, it submits, notwithstanding what in my view is the clear language of rule 61.07(1.1), that Dr. Sigesmund is required to obtain leave to appeal because his cross-appeal is in respect to issues that are not the same as those that it has raised in its appeal. Even though leave to appeal has been granted to the College, it submits that Dr. Sigesmund must obtain leave to appeal because he alleges different errors by the Divisional Court in respect to issues other than those that it has raised in its notice of appeal.

[8] Dr. Sigesmund's position is that rule 61.07(1.1)(b) expressly entitles him to commence a cross-appeal because leave to appeal has been granted to the College. He submits that the College is wrong in contending that he was required to move for leave to appeal because he has raised in his cross-appeal a "separate and distinct issue" than that raised in its appeal by the College. Based on the plain language of rule 61.07, he says that he is not required to obtain leave to appeal because his cross-appeal relates to a different part of the Divisional Court's order. Rule 61.07(1.2) stipulates two circumstances where a respondent is required to obtain leave to cross-appeal; a cross-appeal from part of an order not attacked in the appeal of the appellant is not one of them.

[9] Rule 61 regulates the procedure that applies to appeals and cross-appeals to an appellate court which, pursuant to rule 1.03, means the Court of Appeal and the Divisional Court. The rule also regulates the procedure where leave to appeal to these courts is required. In this case, the College required leave to appeal pursuant to s. 6(1)(a) of the C.J.A. There are other provisions of the C.J.A. and provisions in a number of other statutes that require that an appellant obtain leave to appeal to the Divisional Court or to the Court of Appeal. However, the overriding principle is that Rule 61 is a rule of general application regulating the procedure for all appeals and cross-appeals to both courts.

[10] Doctrinally, an appeal is taken from the order or judgment of the court. In some proceedings, the court's order may resolve more than one issue, as in this appeal. Sometimes, and this appeal is a prime example, success in the court below is divided. As a result of Dr. Sigesmund's appeal to the Divisional Court, some of his convictions were set aside, while others were sustained. The College was the first off the starting line and obtained leave to appeal to restore the findings of guilt against Dr. Sigesmund that were set aside. However, the opposite could have taken place, and Dr. Sigesmund could have been the first party to obtain leave to appeal. Thus, had the circumstances been the reverse, there is no doubt that the College would have [page663] wanted to proceed with its appeal, but in these circumstances, by cross-appeal. In my view, it would undoubtedly have done so in reliance on rule 61.07(1.1)(b). It would not have sought leave to appeal.

[11] Obviously, there can be a cross-appeal only if there is an appeal. Although each party could commence a separate appeal in such circumstances, the provisions of Rule 61 enable the parties to avoid separate proceedings by permitting the respondent to commence a cross-appeal. This is a mechanism directed to the simplification of proceedings, avoidance of multiple proceedings, judicial economy and the reduction of litigation expenses for the parties. As such, a cross-appeal is similar to a counterclaim and a third party claim. In most cases, a party may appeal as of right. In other cases, such as this appeal, the intended appellant must obtain leave to appeal. Provided that there is an appeal as of right or leave to appeal has been granted, rule 61.07(1.1) permits a respondent to serve a notice of cross-appeal. The only exceptions are found in rule 61.07(1.2), which requires the respondent to obtain leave to cross-appeal if the cross-appeal is in respect to costs, or leave to appeal is required by a statute other than the C.J.A.

[12] In summary, rule 61.07(1.1)(b) expressly states that leave to appeal is not required to serve a notice of cross- appeal if leave to appeal has been granted. In this case, the respondent was granted leave to appeal. Nowhere in rule 61.07 does it state, as the College contends, that a respondent is required to obtain leave to appeal if the cross-appeal relates to a different issue or a different part of the order for which leave to appeal has been granted. Logically, almost invariably a cross-appeal will be based on a different error in the court below than that on which an appeal is based. Moreover, taken to its logical conclusion, if the College is correct, there could never be a cross-appeal, with or without leave, on any issue different from the issue raised by the appeal.

[13] Rule 61.07(1.2) stipulates two exceptions to the general rule that leave to cross-appeal is not required if one of the two conditions in rule 61.07(1) has been satisfied. Leave to cross-appeal is required if the appeal is in respect to costs, as required by s. 133(b) of the C.J.A., or the appeal is taken under a statute other than the C.J.A. that requires leave for appeal. Significantly, rule 61.07(1.2) does not require leave to cross-appeal if it relates to a different issue or a different part of the order for which leave to appeal has been granted. As Dr. Sigesmund's cross-appeal is under s. 6(1)(a) of the C.J.A., rule 61.07(1.2) does not apply.

[14] For the foregoing reasons, I would dismiss the motion to quash Dr. Sigesmund's cross-appeal. Given the clear language of rule 61.07, in my view this motion should not have been brought. [page664] I would award Dr. Sigesmund costs of the motion in the amount of $5,000, plus disbursements and GST.

Motion dismissed.