Court File and Parties

Court of Appeal for Ontario Date: 20210512 Docket: M52153 and M52369 (M51847)

Nordheimer J.A. (Motions Judge)

Between

The Regional Municipality of Halton Plaintiff Moving and Responding Party

and

F. Greco & Sons Limited o/a Greco Construction, Michael Greco, John Frank Greco, John Paul Greco, Sirron Systems Incorporated, Sirron Systems Inc., Sirron Group International, Sirron Electrical Contracting Corporation, David Allan Norris, Meehan’s Industrial Maintenance Ltd., Patrick Vincent Meehan, Jason Matthew Mote, Giulio (Julio) Cerelli, Canian Precision Machine Shop Limited, Wahan Aghaian, Eli Ishkanian and Lisa Snowball Defendants Moving and Responding Party

Counsel: Talia Gordner, for the moving and responding party, Regional Municipality of Halton Paul H. Starkman, for the moving and responding party, Lisa Snowball

Heard: May 12, 2021 by video conference

Endorsement

[1] I have two motions before me. One motion is brought by the Regional Municipality of Halton to strike out the motion for leave to appeal brought by the responding party, Lisa Snowball. The other motion is brought by Lisa Snowball for leave to file fresh evidence on the motion for leave to appeal. Ms. Snowball’s motion for leave to appeal seeks to appeal the denial of leave to appeal by the Divisional Court from an order of a Superior Court judge.

[2] Prior to hearing the merits of the motions, I raised with counsel whether a single judge of this court has jurisdiction to determine either of them. I have concluded that I do not.

[3] Only a panel can determine the issue of jurisdiction with respect to an appeal: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(3), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 61.16(2.2). Also, only a panel can determine a motion for leave to appeal: Courts of Justice Act, ss. 7(1), 7(3).

[4] In my view, it follows from these provisions that since a panel must determine the motion for leave to appeal, it is a panel that must determine any jurisdictional issue relating to the motion for leave since, if successful, it would finally determine whether there is an appeal or not. Therefore, it must be a panel of this court that hears and determines the Region’s motion to strike the motion for leave to appeal.

[5] I reach the same conclusion respecting Ms. Snowball’s motion to adduce fresh evidence. Rule 61.16(2) of the Rules of Civil Procedure provides that a motion to receive fresh evidence must be made to the panel hearing the appeal. Following the same analysis above relating to the jurisdiction issue, it is my view that, if a panel hearing an appeal must determine the admissibility of fresh evidence on the appeal, a panel hearing a motion for leave to appeal must determine the admissibility of fresh evidence on that motion.

[6] As a result, I order that these two motions be transferred to be heard and determined by a panel of this court. If the panel determines the jurisdictional issue in favour of the Region, then the motion for fresh evidence becomes moot. If the jurisdictional issue is determined in favour of Ms. Snowball, then the panel can direct how the motion for fresh evidence ought to be dealt with.

[7] I reserve the costs of today to the panel hearing the motions.

“I.V.B. Nordheimer J.A.”