Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200513 DOCKET: C67394

Before: Roberts J.A. (Case Management Judge)

BETWEEN:

4352238 Canada Inc. Applicant (Appellant)

and

SNC-Lavalin Group Inc., SNC-Lavalin Inc., SNC-Lavalin Highway Holdings Inc., 7577702 Canada Inc., and MICI Inc. Respondents (Respondents)

Counsel: Mark A. Gelowitz, Allan D. Coleman and Lia Bruschetta, for the appellant Linda Fuerst and Fahad Siddiqui, for the respondents SNC-Lavalin Group Inc., SNC-Lavalin Inc. and SNC-Lavalin Highway Holdings Inc. Eliot N. Kolers and Alexander Rose, for the respondents 7577702 Canada Inc. and MICI Inc.

Heard: May 8, 2020 by teleconference

REASONS FOR DECISION

A. Overview

[1] This appeal was scheduled to be heard on April 16, 2020, but was adjourned sine die due to the COVID-19 pandemic emergency. The parties appeared before me for a case management conference to determine how this matter will proceed. The appellant objected to the appeal proceeding in writing, as suggested by the respondents. It argued that this court would not have jurisdiction to hear an appeal in writing over a party’s objection. I disagree. For the following reasons, this matter will proceed in writing.

B. Analysis

(1) This Court Has Jurisdiction to Order a Civil Appeal Heard in Writing

[2] The appellant submitted that this court has limited supervisory jurisdiction over its own process, restricted to governing administrative details, and cannot order an appeal be heard in writing over the objection of one of the parties to the appeal. This, according to appellant, would run contrary to the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43, and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which mandate an oral hearing of a civil appeal unless the parties consent to an appeal in writing.

[3] I do not accept these submissions.

[4] It is well settled that this court’s implicit or ancillary jurisdiction to manage its own process is broad. This court has the jurisdiction to make any procedural order to prevent an abuse of process or to ensure the just and efficient administration of justice: see R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 18, 19; Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660, at para. 24. The court’s implicit powers include those that are reasonably necessary to accomplish the court’s mandate and perform its intended functions: see R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 70. They arise by necessary implication even in the absence of express statutory or common law authority: see Cunningham, at para. 19; see also Pierre v. McRae, 2011 ONCA 187, 104 O.R. (3d) 321, at paras. 30-42.

[5] The exercise of the court’s jurisdiction to manage its own process by directing that some appeals proceed on the written record is not inconsistent with any provision of the Courts of Justice Act or the Rules of Civil Procedure, which, in any event, do not mandate the absolute right to an oral hearing of an appeal. The Courts of Justice Act prescribes the composition of the Court of Appeal, but not the mode of hearings. And, while oral hearings are contemplated, the Rules of Civil Procedure do not explicitly direct that appeals to the Court of Appeal require an oral hearing. Rather, r. 1.04(1) expresses the governing principle that the Rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[6] It is also beyond controversy that the COVID-19 pandemic has created extraordinary circumstances to which we must all adapt as best we can. Since March 17, 2020, there have been no in person appeals heard at the Court of Appeal. More than 100 scheduled appeals had to be adjourned. Through a series of Practice Directions, this court has endeavoured to address the tremendous disruption caused by the pandemic. As a result, appeals are being heard in writing or remotely until in person appeals can resume. Case management conferences are being held to manage and schedule them.

[7] Accordingly, it is well within this Court’s jurisdiction to order that a civil appeal be heard in writing when the due administration of justice requires it. During these extraordinary times, judicial resources are strained. The ability to hear appeals remotely is not unlimited. Where appropriate, some appeals must be heard in writing in order to ensure that appeals continue to be heard in a timely and an orderly fashion.

(2) This Appeal Should Proceed in Writing

[8] In the present case, this appeal is entirely suited to being heard in writing. It arises out of the dismissal of an application for narrow declaratory relief. The application proceeded on a paper record. It concerns the interpretation of a clause in a contract within the context of a relatively straightforward factual matrix. The parties are permitted to file supplementary facta. Further submissions are not foreclosed: if necessary, the panel has the option to seek further oral and written submissions. There is absolutely no prejudice or unfairness to the appellant by proceeding in writing. But the potential prejudice to the respondents by any further delay and the unnecessary strain on the court system are obviated.

C. Directions

[9] This appeal will proceed in writing.

[10] The parties shall serve and file electronically all material previously filed in paper and supplementary facta of no more than ten pages as follows: (1) the appellant by June 3, 2020; and (2) the respondents by June 24, 2020.

[11] The supplementary facta shall include the parties’ respective brief costs submissions and append a costs outline. The facta and supplementary facta shall include hyperlinks as described in section 11 of the Practice Direction Regarding the Electronic Conduct of Matters During the COVID-19 Emergency. Where possible, as described in section 12 of the same Practice Direction, parties are encouraged, but not required, to hyperlink the key documents referred to in their factums and use PDF bookmarks to facilitate navigation of the materials filed. The parties are to consult the Practice Direction Regarding the Electronic Conduct of Matters During the COVID-19 Emergency. All electronic filings must be sent via email to coa.e-file@ontario.ca.

[12] The court’s appeal scheduling unit will contact the parties to advise the week during which the appeal shall be considered by the panel so that they are available in the event the panel requires additional submissions orally or in writing.

[13] There is no publication ban nor any concerns about members of the public or media having access to the hearing.

“L.B. Roberts J.A.”