ONCA Orders Appeal to be Heard in Writing

May 26, 2020 Kira Domratchev Litigation Tags: , , , 0 Comments

The Ontario Court of Appeal recently addressed an appeal that was scheduled to be heard on April 16, 2020 which had to be adjourned sine die due to COVID-19. The full decision of 4352238 Canada Inc v SNC-Lavalin Group Inc, 2020 ONCA 303 can be found here.

During a case management conference before Justice L.B. Roberts, which was scheduled to determine how this matter was to proceed, the Appellant objected to the appeal proceeding in writing, as suggested by the Respondents. The argument that the Appellant relied on was that the Court would not have jurisdiction to hear an appeal in writing over a party’s objection. The Court disagreed.

In making such a decision, the Court confirmed as follows:

  1. The Court Has Jurisdiction to Order a Civil Appeal Heard in Writing
  • The Appellant’s argument that the Court has limited supervisory jurisdiction over its own process, restricted to governing administrative details was rejected. The Court held that it is well settled that its implicit or ancillary jurisdiction to manage its own process is broad. Case law was cited to support the Court’s position that it has “the jurisdiction to make any procedural order to prevent an abuse of process or to ensure the just and efficient administration of justice”.
  • The Court’s implicit powers include those that are “reasonably necessary” to accomplish the Court’s mandate and perform its intended function which arise by necessary implication even where there is no express statutory or common law authority to that effect.
  • The Courts of Justice Act and the Rules of Civil Procedure do not mandate the absolute right to an oral hearing of an appeal.
  • COVID-19 has created extraordinary circumstances to which all must adapt as best as possible.
  1. This Appeal Should Proceed in Writing
  • This matter arises as a result of the dismissal of an application for narrow declaratory relief which proceeded on a paper record. It concerns the interpretation of a clause in a contract within the context of relatively straightforward facts.
  • Further submissions are not foreclosed in that, if necessary, the panel has the option to seek further oral and written submissions.
  • There is 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 is evident.

It has been some time now that the judicial system highlighted the importance of written advocacy. Certainly, advocates today are aware of how important it is to their client’s case, regardless of whether an oral hearing takes place, at the end of the day.

What this recent decision suggests now is that the importance of written advocacy is further elevated because during these difficult times and given the limitations imposed by COVID-19, your client’s written position may very well be their “day in Court”.

Thanks for reading!

Kira Domratchev

Find this blog interest? Please consider these other related posts:

Ontario Court of Appeal on Tarantino v. Galvano

Court of Appeal Reiterates the Test for Undue Influence

Court of Appeal Upholds Tolling of a Limitation Period due to Fraudulent Concealment

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